PROPERTIES HACKER LLC v. New York City Department of Transportation, Defendant. (2020)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered December 6, 2019, which, insofar as appealed from as limited by the briefs, denied defendants' motion to dismiss the second, third and fourth causes of action with prejudice pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

As plaintiff concedes, all claims against the New York City Department of Transportation should be dismissed because it is not a suable entity.

The second cause of action seeks the right to relocate, restore, or rebuild a sign that was taken by eminent domain in 2007.  However, once a property is condemned, the condemnee's rights in the property are “completely extinguished” (Vitucci v. New York City School Constr. Auth., 289 A.D.2d 479, 480, 735 N.Y.S.2d 560 [2d Dept. 2001], lv denied 98 N.Y.2d 609, 747 N.Y.S.2d 409, 775 N.E.2d 1288 [2002] ).

The third cause of action, as pleaded in the complaint, seeks an easement for block 2277, lot 94 (incorrectly identified as lot 98), over the portion of block 2277, lot 50 that had been taken by eminent domain.  That portion is now block 2277, lot 250.  In opposition to defendants' motion, plaintiff sought an easement for the portion of lot 50 that had not been taken by eminent domain.  Plaintiff may not now obtain an easement over lot 250 because, when the government “takes property through eminent domain, it takes in fee simple absolute and extinguishes all easements” (Thomas Gang, Inc. v. State of New York, 19 A.D.3d 861, 863, 797 N.Y.S.2d 583 [3d Dept. 2005]; see also Matter of Ossining Urban Renewal Agency v. Lord, 39 N.Y.2d 628, 630–631, 385 N.Y.S.2d 28, 350 N.E.2d 405 [1976] ).  To the extent plaintiff seeks an easement by necessity for lot 94, it failed to show that the easement was “‘absolutely necessary’ ” (Simone v. Heidelberg, 9 N.Y.3d 177, 182, 847 N.Y.S.2d 511, 877 N.E.2d 1288 [2007] ).  Defendants submitted documentary evidence, including the deed for lot 94, showing that lot 94 did not need an easement over lot 250 because it already had an easement to its north.

Even if the value of lot 50 has decreased due to its lessened access to City streets, plaintiff had a remedy at the time of the eminent domain proceeding.  “[L]andowners are entitled to compensation representing ․ the decrease in value to their remaining land due to the deprivation of a reasonable means of gaining access to that remaining land” (Thomas Gang, Inc., 19 A.D.3d at 863, 797 N.Y.S.2d 583).

To the extent plaintiff wanted the tax map to be corrected, the City has done so.  Plaintiff admits that the fourth cause of action is moot to this extent.

As for the part of the fourth cause of action that alleges slander of title, plaintiff admitted in opposition to defendants' motion, “since no pecuniary damages have yet been sustained, no cause of action for slander of title has yet accrued.”  In addition, the cause of action fails to allege the requisite malice or spite (see Terrace Hotel Co. v. State of New York, 19 N.Y.2d 526, 530, 281 N.Y.S.2d 34, 227 N.E.2d 846 [1967]; see also id. at 532, 281 N.Y.S.2d 34, 227 N.E.2d 846 [“the mere filing of the appropriation maps, not having been motivated by malice, did not constitute slander of title”] ).