LP v. City of New York, et al., Defendants–Respondents. (2012)

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I Freedman of counsel), for City of New York, respondent.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for Metropolitan Transit Authority, New York City Transit Authority, MTA Capital Construction and S/3 Tunnel Constructors, respondents.

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 30, 2010, which granted defendant City of New York's motion to dismiss the complaint as against it, unanimously affirmed, without costs.

The motion court properly dismissed the cause of action alleging that the City failed to enforce Building Code provisions relating to construction, excavation, and blasting by not ordering the Metropolitan Transit Authority (MTA) defendants to perform the work required to stabilize or otherwise protect plaintiff's building.   No liability lies against the City for its discretionary decisions relating to issuing orders, directives, permits, or the like even where the Code allows it to do so (see City of New York v. 17 Vista Assoc., 84 N.Y.2d 299, 307 [1994];  Matter of Church of the Chosen v City of Elmira, 18 AD3d 978, 979 [2005], lv denied 5 NY3d 709 [2005], cert denied 547 U.S. 1115 [2006] ).

The cause of action alleging a violation of the Takings Clause (U.S. Const, 5th Amend;  NY Const art I, § 7), was also properly dismissed.   Plaintiff does not allege that the City's issuance of the Emergency Declaration and Vacate Order forever deprived plaintiff of all of the building's economic use (see Kaufman v. City of New York, 717 F Supp 84, 95 [SD N.Y.1989], affd 891 F.2d 446 [1989] ), cert. denied 493 U.S. 957 [1990] ).   More critically, the motion court correctly held that no compensation was due under the Takings Clause, as compensation is not required where the government acts to “prevent an impending danger emanating directly from the use or condition of the property” (Birnbaum v. State of New York, 73 N.Y.2d 638, 646 [1989], cert denied 494 U.S. 1078 [1990];  see also Rochester Poster Adv. Co. v City of Rochester, 38 A.D.2d 679 [1971] ).

Insofar as the complaint alleges that the City conspired with the MTA to deprive plaintiff of its property rights, such claim fails to state a cause of action since civil conspiracy has not been properly pleaded.   The complaint fails to allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement (see Abacus Fed. Sav. Bank v. Lim, 75 AD3d 472, 474 [2010] ).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK