Opinion
# 2015-030-580 Claim No. 124818 Motion No. M-86623
08-04-2015
ELITE PROMOTION SYSTEMS, INC. v. THE STATE OF NEW YORK
SANCHEZ & POLOVETSKY, PLLC BY: JENNIFER POLOVETSKY, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: CHARLES E. GARY ASSISTANT ATTORNEY GENERAL
Synopsis
Defendant's motion for partial summary judgment dismissing that part of the underlying claim seeking compensation for billboard signs located on the property denied. State's allegation that subject billboards an illegal, non-permissible use on the title vesting date and thus should have no value for the purposes of calculating damages to the claimant better addressed after full exchange of appraisals, development of a legal analysis - not in speculation in one-sided affidavits - and during the cross-examination of witnesses at a trial.
Case information
| UID: | 2015-030-580 |
| Claimant(s): | ELITE PROMOTION SYSTEMS, INC. |
| Claimant short name: | ELITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124818 |
| Motion number(s): | M-86623 |
| Cross-motion number(s): | |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | SANCHEZ & POLOVETSKY, PLLC BY: JENNIFER POLOVETSKY, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: CHARLES E. GARY ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | |
| Signature date: | August 4, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on defendant's motion for partial summary judgment:
1, 2 Notice of Motion, Affirmation by Charles E. Gary, Assistant Attorney General, and attached exhibits
3 Attorney Affirmation in Opposition by Jennifer Polovetsky, Attorney for Claimant, and attached exhibits
4 Reply Affirmation by Charles E. Gary, Assistant Attorney General, and attached exhibits
5 Filed paper: Claim
This claim arises from the State's appropriation of a parcel of property located on the Southeast corner of Cherry Street and Porter Avenue in Brooklyn, New York, known as 536 Porter Avenue (a/k/a 38-66 Cherry Street), as part of the Kosciuszko Bridge project. It was filed in the Office of the Chief Clerk of the Court of Claims on August 8, 2014, and served upon the Attorney General's Office on the same date. Notice of Acquisition was served on claimant on August 9, 2011. [Claim No. 124818]. The State acquired title to the property on July 19, 2011. [Ibid., Exhibit 1].
Defendant now moves for partial summary judgment dismissing that part of the underlying claim seeking compensation for billboard signs located on the property, arguing that as these were allegedly an illegal, non-permissible use on the title vesting date, they should have no value for the purposes of calculating damages to the claimant. Claimant opposes the motion, arguing, among other things, that this is an impermissible attempt to advance determination of what constitutes the highest and best use of the property: one of the primary responsibilities of the Court when evaluating what just compensation should be paid to citizens whose property has been taken by eminent domain, a determination appropriately made after a plenary trial.
As the party seeking summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case. Cox v Kingsboro Med. Group, 88 NY2d 904 (1996); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). Failure to make a showing of entitlement to judgment as a matter of law by appropriate evidence, however, requires denial of the motion regardless of the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Ctr., supra, at 853.
Issue finding - not issue resolution - is the Court's role on application for summary judgment. This is a drastic remedy, the procedural equivalent of trial, and should not be granted where there is any doubt as to the existence of triable issues of fact. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Thus, in reviewing the papers submitted on a motion for summary judgment, the court must examine the proof in a light most favorable to the party opposing the motion, here, the claimant. Robinson v Strong Mem. Hosp., 98 AD2d 976 (4th Dept 1983).
Procedurally, it is noted that claimant has filed its appraisal report, and that defendant has sought, in other motion practice [see M-86970], a further extension of time within which to file its appraisal while this motion has been sub judice. [22 NYCRR §206.21].
In addition to a copy of the claim and its attachments, defendant has submitted affidavits by Edward J. Fortier, Jr., Executive Director of Special Enforcement at the New York City Department of Buildings, and by Richard Marchitelli, a real estate appraiser. [Gary Affirmation, Exhibits B and C]. These attest to the supposed illegality of the two monopole billboard signs as used at the time of the appropriation, thus implicating the "legally permissible" aspect of analyzing what is the highest and best use of the subject property.
Mr. Fortier writes that "[a]dvertising signs are prohibited within 200 feet and within view of an Arterial, while business signs, limited to 500 square feet in face surface area, are permissible [under] NYC Zoning Resolution §42-55(a)." [Gary Affirmation, Exhibit B, ¶ 4]. He asserts that at the time of taking, although claimant had permits to display business signs related to a business on the same premises, it did not have permits for advertising unrelated enterprises.
Mr. Fortier states that two applications are required to erect sign structures generally. First, the structure is permitted, then the sign face itself. Claimant, he asserts, "filed an application to build a non-advertising, accessory (a.k.a. 'business') sign on the subject property on March 19, 1998" for the structure, and on March 20, 1998 for the sign face. [Gary Affirmation, Exhibit B, ¶ 5]. The applications were approved and permits were issued for a sign structure and face reading "storage" on June 16, 1998. [Id]. The professional engineer associated with this application "signed off" on the application on February 26, 1999. [Id.].
Applications for a second, non-advertising, accessory sign were filed in 2000. Two associated sign face applications were made, for sign faces that would read "Elite Promotion Inc." [Gary Affirmation, Exhibit B, ¶ 6]. Work permits were issued, and a professional engineer signed off on this structure and sign face in June and July 2001. [Id.].
Mr. Fortier asserts that any change in the messages approved for the sign faces would require a new application and permit and, under NYC Building Code §28-105.1, "could relate only to a business on the same premises." [Gary Affirmation, Exhibit B, ¶ 7]. He states: "The signs were never approved for use as advertising signs and have always been illegal for that use." [Id.].
Additionally, the regulations were modified in 2001 to impose the size restriction to 500 square feet in surface area referred to above, per "NYC Zoning Resolution §42-55(a)(1)." [Gary Affirmation, Exhibit B, ¶ 8]. Mr. Fortier indicates that existing accessory signs that were larger could continue "if properly and continuously used for their legal, accessary business purpose," under the "non-conformance regulations." [Id.]. He states: "The signs have never been legal for advertising use and due to that illegal use, are now no longer allowed to continue as accessory business signs either (NYC Zoning Resolution §52-61)." [Id.].
Finally, Mr. Fortier states that some preliminary information required for the registration of the signs was filed with his department, but claimant never completed the registration, as indicated in a May 27, 2011 letter from the department to the owner. "Specifically, the former owner failed to document via Registered Architect or Licensed Engineer certification, that the signs either conformed with all current zoning regulations or were entitiled to non-conforming (a.k.a. 'grandfathered') status for advertising use. NYC Building Code §28-502.4.3." [Gary Affirmation, Exhibit B, ¶ 9]. He concludes that "both signs on the subject property were never approved for advertising use. The accessory business use which was initially permitted has also been lost due to illegal advertising use, deeming both signs completely illegal on the date the State took title to the subject property." [Gary Affirmation, Exhibit B, ¶ 10].
Echoing the assertions made by the New York City Department of Buildings employee, Richard Marchitelli, a real estate appraiser, opines that "on the date of vesting, the billboards located on the subject property were illegal, and a non-permissible use." [Gary Affirmation, Exhibit C, ¶ 5]. He defines, appropriately, highest and best use for a property as "the reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and results in the highest value." [Gary Affirmation, Exhibit C, ¶ 6]. Thus, under generally regarded valuation principles concerning compensability and evaluating the highest and best use for a property, he determines that because of the legal impermissibility of the signs, they have no value, and should not be included in a calculation of damages. [Gary Affirmation, Exhibit C, ¶ 7]. He attaches his expert report, dated February 10, 2015, with regard to these conclusions.
No copies of the City ordinances, or authority pertinent to this application - made before the exchange of expert appraisal reports - is presented by defendant.
Indeed, in papers filed in opposition, claimant points out that no reference is made to subsequent application by claimant to regularize the billboard use, that the affiants assume facts and then draw conclusions from such assumptions, that a different administrative agency would be tasked with determining whether the billboards are a permitted accessory use [see e.g. Matter of Atlantic Outdoor Adv., Inc. v Srinivasan, 110 AD3d 598 (1st Dept 2013) app denied 25 NY3d 901 (2015)], and that thus defendant has not met its burden on the motion under summary judgment standards. See Civil Practice Law and Rules §3212.
The Court agrees that there is no final administrative determination from which judicial review might flow, thus such illegality is not assumed. Notably,
"[t]he doctrine of ripeness is intended to avoid premature adjudication or review of administrative action. It rests upon the idea that courts should not decide the economic impact of regulation until the full extent of the regulation has been finally fixed and the amount of damage caused by it is measurable. Until the agency has formalized its decision and its impact is felt in a concrete way, the courts should avoid becoming entangled in abstract or hypothetical problems or interfering with administrative policies . . . (citation omitted)." de St. Aubin v Flacke, 68 NY2d 66, 75 (1986).
Claimant also notes that there is no evidence presented on the motion that there were pre-taking violations issued relative to illegal sign use or illegal sign structure.
Additionally, the viability or legality of the billboards issue would seem most analogous to a probability of rezoning or a probability of obtaining a variance type of issue [see e.g. Masten v State of New York, 11 AD2d 370 (3d Dept 1960) affd 9 NY2d 796 (1961); Matter of City of New York (Rudnick), 25 NY2d 146 (1969); cf; John Arborio, Inc. v State of New York, 27 AD2d 388 (3d Dept 1967)], better addressed after full exchange of appraisals, development of a legal analysis - not in speculation in one-sided affidavits - and during the cross-examination of witnesses at a trial.
The purpose of summary judgment is to identify those cases where there are no issues of fact. Based on the foregoing, defendant's motion for summary judgment is in all respects denied.
August 4, 2015
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims