Opinion
No. SSD 6.
Decided February 17, 2011.
APPEAL, on constitutional grounds, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered October 12, 2010, in a proceeding pursuant to EDPL 207. The Appellate Division (1) denied a petition to annul a determination of the Department of Housing Preservation and Development of the City of New York which had authorized the condemnation of petitioners' properties, (2) confirmed the determination, and (3) dismissed the proceeding.
Matter of Uptown Holdings, LLC v City of New York, 77 AD3d 434, appeal dismissed.
Feerick Lynch MacCartney, PLLC, South Nyack ( J. David MacCartney, Jr., of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York City ( Fred Kolikoff of counsel), for respondents.
Concur: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, PIGOTT and JONES. Judge SMITH concurs in an opinion.
OPINION OF THE COURT
Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.
I agree that no substantial constitutional issue is presented, because, as the concurring opinion in the Appellate Division points out, this case is controlled by Matter of Goldstein v New York State Urban Dev. Corp. ( 13 NY3d 511) and Matter of Kaur v New York State Urban Dev. Corp. ( 15 NY3d 235). I think it necessary to point out, however, that our dismissal of this appeal does not imply endorsement of the Appellate Division majority opinion, which may be read to suggest that Kelo v New London ( 545 US 469) should be followed by New York courts interpreting the New York Constitution ( see Goldstein, 13 NY3d at 546 [Smith, J., dissenting] ["The good news from today's decision is that our Court has not followed the lead of the United States Supreme Court in rendering the `public use' restriction on the Eminent Domain Clause virtually meaningless"]).
Appeal dismissed, etc.