Opinion
December 28, 1970
In an action (1) to compel action to be taken with respect to plaintiff's land which has been designated as part of a renewal area and (2) to recover damages, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 6, 1970, which granted defendants' motion to dismiss the action for lack of subject-matter jurisdiction and failure to state a cause of action (CPLR 3211, subd. [a], pars. 2, 7). Order affirmed, with $10 costs and disbursements. Plaintiff sues for a judgment directing the City of New York and its Board of Estimate either to bring condemnation proceedings to acquire plaintiff's land or to amend the city's official map by removing the designation of the property as a part of the Ebbets Field Urban Renewal Area, and, in addition, for damages in the sum of $150,000. After answer, defendants moved to dismiss the complaint under CPLR 3211 (subd. [a], pars. 2, 7); and the motion was granted. The papers submitted on the motion show that the city officials have not acted in such a manner as to appropriate plaintiff's property by a de facto taking. So far, all that has occurred has been (1) a designation of the property on the Master Plan by the City Planning Commission as included within an area for urban renewal, (2) a resolution by the Board of Estimate authorizing the filing of an application for the advance of Federal funds, (3) a withdrawal of the application some two years later and (4) a designation of the same area as a code enforcement area, having as its objective the preservation and improvement of existing properties. Plaintiff argues that the continuation of the designation of the property on the Master Plan for urban renewal use is inconsistent with the abandonment of the application for Federal funds to be devoted toward urban renewal and the choice of the area for the rehabilitation of existing properties. Undoubtedly there is a contradiction, but a contradiction which does not lead to the taking of plaintiff's land. The net effect of the city's interest has been a decision by the Planning Commission for planning purposes alone, and not shared by other city agencies or the appropriating body, that plaintiff's land is suitable for urban renewal. This decision by the Planning Commission may indeed apply to other lands in the city, but it clearly does no more than indicate a development which in the future may serve the orderly growth of the city. Other factors, of greater immediate importance, concerning the present economic capacity of the city and the priority of other pressing needs are properly the subjects of decision by the Mayor, the Board of Estimate, and the City Council. Hence, the case does not fall within the principle of a de facto taking discussed in City of Buffalo v. Irish Paper Co. ( 31 A.D.2d 470, affd. 26 N.Y.2d 869) and City of Buffalo v. Clement Co. ( 34 A.D.2d 24). If the city officials had taken steps to implement the decision of the Planning Commission so that the planning aspect became translated into purposeful and unequivocal action by the city authorities responsible for the appropriation of land, a delay by the city to file the taking map or to bring appropriation proceedings would not be suffered by the courts to damage the property owners, for the individual's rights to the enjoyment of his property cannot be infringed by the slowness of governmental action which is certain to occur or the use of delay to intimidate the individual for bargaining purposes in the acquisition of his property. None of these elements is shown by plaintiff; and a cause of action has not been stated by it. Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.