taking claim in New York

2014The Court, citing the Lucas court’s reference to the “logically antecedent inquiry into the nature of the owner’s estate” ( 505 US 1003, 1027 ) noted that the determination of whether a property interest exists to support a taking claim is the threshold inquiry and the facts of that case were such that the petitioner could not show that any right was taken from him ( 89 NY2d 603, 615-616 ).

2014The Court, citing the Lucas court’s reference to the “logically antecedent inquiry into the nature of the owner’s estate” ( 505 US 1003, 1027 ) noted that the determination of whether a property interest exists to support a taking claim is the threshold inquiry and the facts of that case were such that the petitioner could not show that any right was taken from him ( 89 NY2d 603, 615-616 ).

2024Footnote 4: Plaintiff's assertions that FAPA is a taking in violation of the US and NY Constitutions and that it violates the Contract Clause of the US Constitution are both unpreserved, as plaintiff raises them for the first time on appeal ( see Johnston v Johnston , 156 AD3d 1181, 1182 [3d Dept 2017], appeal dismissed 31 NY3d 1126 [2018], lv denied 32 NY3d 1053 [2018]; Matter of Malave v Bedard , 153 AD3d 1536, 1537 [3d Dept 2017]).

2024Footnote 4: Plaintiff's assertions that FAPA is a taking in violation of the US and NY Constitutions and that it violates the Contract Clause of the US Constitution are both unpreserved, as plaintiff raises them for the first time on appeal ( see Johnston v Johnston , 156 AD3d 1181, 1182 [3d Dept 2017], appeal dismissed 31 NY3d 1126 [2018], lv denied 32 NY3d 1053 [2018]; Matter of Malave v Bedard , 153 AD3d 1536, 1537 [3d Dept 2017]).

2024Footnote 4: Plaintiff's assertions that FAPA is a taking in violation of the US and NY Constitutions and that it violates the Contract Clause of the US Constitution are both unpreserved, as plaintiff raises them for the first time on appeal ( see Johnston v Johnston , 156 AD3d 1181, 1182 [3d Dept 2017], appeal dismissed 31 NY3d 1126 [2018], lv denied 32 NY3d 1053 [2018]; Matter of Malave v Bedard , 153 AD3d 1536, 1537 [3d Dept 2017]).

2024Footnote 4: Plaintiff's assertions that FAPA is a taking in violation of the US and NY Constitutions and that it violates the Contract Clause of the US Constitution are both unpreserved, as plaintiff raises them for the first time on appeal ( see Johnston v Johnston , 156 AD3d 1181, 1182 [3d Dept 2017], appeal dismissed 31 NY3d 1126 [2018], lv denied 32 NY3d 1053 [2018]; Matter of Malave v Bedard , 153 AD3d 1536, 1537 [3d Dept 2017]).

2018In order for a 42 USC § 1983 claim based upon a regulatory taking to be ripe, however, it is necessary for a petitioner/plaintiff to "demonstrate that [he or] she has both received a 'final decision regarding the application of the [challenged] regulations to the property at issue' from 'the government entity charged with implementing the regulations,' and sought 'compensation through the procedures the [s]tate has provided for doing so'" ( Suitum v Tahoe Regional Planning Agency , 520 US 725, 734 [1997], quoting Williamson County Regional Planning Commn. v Hamilton Bank of Johnson City , 473

2018In order for a 42 USC § 1983 claim based upon a regulatory taking to be ripe, however, it is necessary for a petitioner/plaintiff to "demonstrate that [he or] she has both received a 'final decision regarding the application of the [challenged] regulations to the property at issue' from 'the government entity charged with implementing the regulations,' and sought 'compensation through the procedures the [s]tate has provided for doing so'" ( Suitum v Tahoe Regional Planning Agency , 520 US 725, 734 [1997], quoting Williamson County Regional Planning Commn. v Hamilton Bank of Johnson City , 473

2017Although not required to do so, given the limitations on the scope of our review in this article 78 proceeding, were I to address the issue of whether the LPC could have properly required Civic Center to provide public access to the Clocktower Suite in perpetuity, as the majority effectively holds, I would find that such a requirement would raise issues under the Fifth Amendment's taking clause ( see Nollan v California Coastal Commn. , 483 US 825, 831 [1987] ["Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in

2013LP v Mullen, 21 NY3d 233, 247 [2013] [internal quotation marks omitted and emphasis added], quoting Landgraf v USI Film Products, 511 US 244, 266 [1994].) “The determination of whether a property interest exists to support a taking claim is typically the threshold inquiry.” (Matter of Gazza v New York State Dept. of Envtl.

2013LP v Mullen, 21 NY3d 233, 247 [2013] [internal quotation marks omitted and emphasis added], quoting Landgraf v USI Film Products, 511 US 244, 266 [1994].) “The determination of whether a property interest exists to support a taking claim is typically the threshold inquiry.” (Matter of Gazza v New York State Dept. of Envtl.

2012Owners Corp., 5 NY3d 54, 57 [2005]; Sassi-Lehner v Charlton Tenants Corp., 55 AD3d 74, 78 [2008]), the evidence supports a fact-finding determination that the mechanical room was initially contemplated within the space attributed to Penthouse East, that the designation of the mechanical room as “W212” was a typographical error, that the mechanical room was, in fact, part of Penthouse East, and that the mechanical room was connected to Penthouse West because it was easier to do so while the parties settled their dispute as to ownership of this room.

2012Owners Corp., 5 NY3d 54, 57 [2005]; Sassi-Lehner v Charlton Tenants Corp., 55 AD3d 74, 78 [2008]), the evidence supports a fact-finding determination that the mechanical room was initially contemplated within the space attributed to Penthouse East, that the designation of the mechanical room as “W212” was a typographical error, that the mechanical room was, in fact, part of Penthouse East, and that the mechanical room was connected to Penthouse West because it was easier to do so while the parties settled their dispute as to ownership of this room.

2006Moreover, even if such an in-law relationship is not by itself sufficient to rebut the presumption of hostility, taking possession of property by reason of cohabiting with a spouse is not a taking under a claim of right (see Matter of Klenofsky v Leviss, 156 AD2d 520 [1989]), also a necessary element of adverse possession (see Joseph v Whitcombe, 279 AD2d 122, 126-127 [2001]).

2006It does not avail plaintiff that she may have believed that her husband owned the apartment (cf. id. at 127 ).

2005(See Andrus v Allard, 444 US 51, 67 [1979]; Long Cove Club Assoc., L.P. v Town of Hilton Head Is., 319 SC 30, 32-33, 458 SE2d 757, 758 [1995] [noting that the United States Supreme Court in Andrus was applying real property regulatory taking analysis to personal property], cert denied 516 US 1029 [1995].) A taking may be classified either as a physical taking or as a regulatory taking.

2005(See Andrus v Allard, 444 US 51, 67 [1979]; Long Cove Club Assoc., L.P. v Town of Hilton Head Is., 319 SC 30, 32-33, 458 SE2d 757, 758 [1995] [noting that the United States Supreme Court in Andrus was applying real property regulatory taking analysis to personal property], cert denied 516 US 1029 [1995].) A taking may be classified either as a physical taking or as a regulatory taking.

2000Resources, 639 F2d 495, 497-498 [State’s practice of maintaining feral goats and sheep in the habitat of the palila, an endangered bird, constituted a taking; State ordered to remove goats and sheep]; United States v Town of Plymouth, 6 F Supp 2d 81 [off-road vehicles barred from driving on beach unless appropriate precautions are taken to protect piping plovers, which are threatened species under the Federal Endangered Species Act]; Loggerhead Turtle v County Council, 896 F Supp 1170, 1180-1181 [County’s authorization of vehicular beach traffic during turtle mating season constituted a taking

1997The determination of whether a property interest exists to support a taking claim is typically the threshold inquiry ( see , Lucas v South Carolina Coastal Council , 505 US 1003, 1027 , supra [addressing the "logically antecedent inquiry into the nature of the owner's estate"]; Soon Duck Kim v City of New York , 90 N.Y.2d 1 , 6 *615 [decided today]). [5] In this case, the petitioner's claim is based upon the denial of the setback variances.

1997The determination of whether a property interest exists to support a taking claim is typically the threshold inquiry (see, Lucas v South Carolina Coastal Council, 505 US 1003, 1027 , supra [addressing the "logically antecedent inquiry into the nature of the owner’s estate”]; Soon Duck Kim v City of New York, 90 NY2d 1, 6 [decided today]). 5 In this case, the petitioner’s claim is based upon the denial of the setback variances.

1982It held that, under the circumstances, “the fact that [the petitioners] may have ‘physically invaded’ [the center’s] property cannot be viewed as determinative” (PruneYard Shopping Center v Robins, supra, p 84).