Opinion
37905/03
01-11-2019
In the MATTER OF the CITY OF NEW YORK Relative to Acquiring Title in Fee Simple Absolute in Certain Real Property, Where Not Heretofore Acquired, for the Sanitation Garage, Brooklyn District 3 and 3A Located in the Area Generally Bounded by Flushing Avenue, on the North, Nostrand Avenue on the East, Park Avenue on the South, and Warsoff Place on the West, in the Borough of Kings, City and State of New York. 60 Nostrand Avenue LLC, (Fee Claimants for Damage Parcel 1; Block 1718 Lot 1) and Monroe Bus Corporation (Fixture Claimant with Respect to Damage Parcel 1; Block 1718, Lot 1), Claimants, v. The City of New York, Condemnor.
Condemnor Attorney — Zachary W. Carter, 100 Church Street, New York, New York 10007, (212) 356-4064, Stephanie M. Fitos, Esq. Claimant Attorney — Law office of Bruce Levinson, 805 Third Avenue, 12th Floor New York, New York 10022, (212) 750-9898
Condemnor Attorney — Zachary W. Carter, 100 Church Street, New York, New York 10007, (212) 356-4064, Stephanie M. Fitos, Esq.
Claimant Attorney — Law office of Bruce Levinson, 805 Third Avenue, 12th Floor New York, New York 10022, (212) 750-9898
Wayne P. Saitta, J.
Claimant, MONROE BUS CORPORATION, having moved this Court for order setting an undertaking pursuant to CPLR 5519(a)(6), and the motion having come before the Court on December 28, 2018; now upon reading the Order to Show Cause dated December 13, 2018, the Affidavit in Support of Herman Freund sworn to December 6, 2018, and the exhibits annexed thereto; the Affirmation of Stephanie M Fitos, Esq., an Assistant Corporation counsel in the office of the Corporation Counsel of the City of New York, attorneys for the Condemnor, THE CITY OF NEW YORK (the CITY), dated December 20, 2018, and the exhibits annexed thereto, the Affidavit of Matthew Berk dated December 19, 2018, the Affirmation of Robert Orlin Esq., undated, the Affidavit of Andres DeLeon, sworn to December 19, 2018; the Reply Affidavit of Bruce Levison Esq., sworn to December 21, 2018, the Memorandum of Law of Bruce Levison Esq., dated, December 21, 2018; and after argument of counsel and due deliberation thereon, the motion is granted for the reasons set forth below.
The underlying matter is an Eminent Domain proceeding in which the CITY vested title in the property located at 60 Nostrand Avenue, Brooklyn, New York, on December 8, 2004.
Claimant, MONROE BUS CORPORATION, operates an intercity, charter, and school bus service. It was a tenant at the property at the time of vesting and continues to occupy the property, which it uses to run its bus service, as well as to park and service its buses.After allowing the bus company to continue in occupancy for some 15 years, the CITY moved for a writ of assistance to remove the bus company from possession of the property pursuant to Eminent Domain Property Law (EDPL) § 405. The Court granted the writ of assistance, awarding the CITY legal possession of the property on October 17, 2018, but stayed removal of MONROE BUS CORPORATION until January 1, 2019.
MONROE BUS CORPORATION, filed a notice of appeal from the order granting the writ of assistance and now moves the Court to set an undertaking pursuant to CPLR § 5519(a)(6). This section provides for a stay of enforcement, pending appeal, of an order to remove a party from possession of real property where the party files a notice of appeal and gives an undertaking in an amount set by the court.
The CITY argues that an undertaking should not be set because CPLR 5519(a)(6) is not applicable to eminent domain proceedings. In support, the CITY cites the decision of In re New York State Urban Dev Corp., 166 Misc. 2d 909, 636 N.Y.S.2d 568 (Sup. Ct. N.Y. County 1995), where the Supreme Court, New York County, held that CPLR 5519(a)(6) was not applicable to a writ of assistance granted pursuant to the EDPL.
As the court in New York State Urban Dev Corp. is a court of concurrent jurisdiction its holding is not binding on this Court and this Court does not find it persuasive.
The Court in New York State Urban Dev Corp. based its holding that CPLR 5519(a)(6) does not apply to eminent domain proceedings on three rationales. First, that the EDPL is the exclusive procedure by which property shall be acquired by eminent domain. Second, that an order vesting title in a condemnor terminates all possessory rights of owners and tenants, and that the sole remedy to contest a condemor's application to vest is by a proceeding commenced directly in the Appellate Division pursuant to EDPL § 207. Third, that the provision in CPLR § 5519(a)(6) that the appellant give an undertaking cannot adequately protect the interests of a condemnor that takes a property for a public use.
None of the three rationales withstand scrutiny.
First, while the EDPL is the exclusive procedure to acquire property by eminent domain, it contains no provisions governing appeals from orders and judgments issued in eminent domain cases. Consequently, appeals in eminent domain cases are governed by the CPLR. Further, the text of CPLR 5519(a)(6) contains no exception for eminent domain cases. While most of the cases in which the stay without court order pursuant to CPLR 5519(a)(6) is invoked are landlord tenant disputes, there is no indication either in the statute or the legislative history that the legislature sought to exclude the availability of a stay without court order from eminent domain cases.
Based on the legislative history submitted by the CITY, it appears that the legislature did not consider whether it was appropriate to provide a stay without court order for appeals in eminent domain cases. It is not the role of the Court to read into the statute an exception that was not contemplated by the legislature.
Second, while a vesting order vests title in the condemnor and terminates any existing right of possession by tenants, it does not grant possession to the condemnor. Once title is vested, a condemnor is entitled to seek possession, provided that it has made an advance payment available to the tenant. Where a tenant refuses to leave, a condemnor must seek possession either through a motion pursuant to EDPL § 405 in the underlying eminent domain proceeding, or by commencing a separate proceeding for possession.
The third rationale cited by the court in New York State Urban Dev Corp., the fact that the undertaking pursuant to CPLR 5519(a)(6) does not protect a condemnor's interest in obtaining timely possession of a condemned property to put it to public use, does not relieve the court of its obligation to set an undertaking.
The undertaking provided for in CPLR 5519(a)(6) is limited, on its face, to protecting an owner of property from any waste that may be committed by the tenant and to ensuring that they can recover use and occupancy. The fact that the legislature did not provide protections for the particular interests that public entities or the public may have in gaining possession of property condemned for public use, is a matter for the legislature, and not the court to address.
More disconcerting however, is that the appeal appears to be without merit and untaken merely to secure the delay provided by the stay.
In this case, the CITY continued to permit the bus company to remain in possession for several years after vesting in return for the payment of an agreed upon monthly payment of use and occupancy. When the CITY decided to seek possession, they did so through an application for a writ of assistance pursuant to EDPL § 405. The Court granted the writ, as the CITY had made the advance payment to the tenant and thus has a right to possession.
In opposing the issuance of the writ, MONROE BUS CORPORATION admitted that the CITY had a right to possession but argued that since the CITY was not ready to construct it new facility, and MONROE BUS CORPORATION had been unable to find a new location, equity required that it be allowed to continue in possession.
However, it is not necessary for a condemnor to show it has an immediate need for the condemned property in order to obtain a writ of assistance pursuant to EDPL § 405. Once title has vested, the only condition for granting the writ is that the condemnor has made the advance payment to the condemnee. ( In re City of New York, 41 Misc. 3d 818, 975 N.Y.S.2d 578 [Sup. Ct., Queens Co. 2013] ; New York State Urban Dev Corp v. MJM Exhibitors, Inc., 193 A.D.2d 523, 598 N.Y.S.2d 177 [1st Dept. 1993].)
Nonetheless, although there is no apparent meritorious basis for MONROE BUS CORPORATION's appeal from the grant of the writ, a showing of merit is not required by CPLR 5519(a)(6). That section provides for a stay without order of the court. The only role for the court under CPLR 5519(a)(6) is to set the amount of an undertaking.
As there is no exclusion of eminent domain cases from the stay without court order of CPLR 5519(a)(6), the court must set an undertaking, to protect the condemnor against waste, and to guarantee payment of use and occupancy, for the period from the taking of the appeal until the delivery of possession of the property.
The CITY's request for an undertaking of $16,000,000 is excessive as it goes beyond what is needed to protect against waste and to ensure payment of use and occupancy. The possible consequential damages on which the CITY bases its figure, such as the costs in renting alternative locations to park its sanitation trucks, and increased costs in constructing the new facility in the event the current low bidder must be released from their bid because of the delay, are not losses that the undertaking pursuant to CPLR 5519(a)(6) is designed to protect against.
In this case, the monthly amount of use and occupancy was set by a stipulation of the parties in March of 2011. The parties agreed that MONROE BUS CORPORATION would pay the CITY monthly use and occupancy fees of $20,600 from the date of title vesting until it vacated the premises or gave possession to the City. Although the agreement provided that the CITY would not seek possession before January 1, 2015, it made no provision for adjusting the use and occupancy in the event MONROE BUS CORPORATION continued in possession after that date.
The undertaking must cover the use and occupancy for the length of time the appeal is expected to take. Given the extremely heavy caseload of the Appellate Division Second Department, it is reasonable to set the amount of the undertaking to guarantee 2½ years of use and occupancy, which would total $618,000.
An additional amount is required to protect the CITY against potential waste to the property during the pendency of the appeal. There are no allegations the MONROE BUS CORPORATION has committed waste up to this point or is about to commit waste. Despite MONROE BUS CORPORATION's position that waste is not an issue, the property is a lot used to park and service the company's fleet of buses. There is a potential for environmental contamination from oil and gasoline discharges or spills that could impose on the CITY costs for remediation. While precise calculation of the amount necessary to protect against potential waste is not practicable, an undertaking in the amount of $400,000 is reasonable to protect the CITY against such potential waste during the expected pendency of the appeal. Thus, a total undertaking in the amount of $1,018,000 is appropriate in this case.WHEREFORE, it is hereby ORDERED that the motion of MONROE BUS CORPORATION to fix an undertaking pursuant to CPLR 5519(a)(6) is granted and the amount of the undertaking is fixed at $1,018,000. This constitutes the decision and order of this Court.