Opinion
No. 00 Civ 7481 (JIB).
September 20, 2001
OPINION ORDER
Plaintiffs William V. Minnich, William J. Minnich, Minic Custom Woodwork, Inc. (collectively "Minnich") and William Brody ("Brody") brought this action alleging that sections of the New York Eminent Domain Proceeding Law ("EDPL') are unconstitutional under the due process clause of the Fourteenth Amendment to the United States Constitution seeking injunctive relief. Specifically, plaintiffs alleged that the EDPL failed to prescribe adequate notice to condemnees of their procedural rights under the EDPL and failed to provide an adversarial proceeding in which to challenge a condemnation. Plaintiffs first sought a preliminary injunction to bar the defendants, Charles Gargano and the Empire State Development Corporation ("ESDC") and the Village of Port Chester ("the Village") from proceeding in their respective plans to condemn the plaintiffs' property. On January 18, 2001, this Court granted preliminary injunctive relief as to Brody but denied it to Minnich on the ground that he had failed to demonstrate a likelihood of imminent harm. The Village appealed, and, on August 8, 2001, the Second Circuit vacated and remanded on the grounds that Brody lacked standing to bring his claim and that this Court had not adequately considered the public interest facet relevant at this stage of the proceeding. Both sides have now filed cross-motions for summary judgment on their respective claims. For the following reasons defendants' motions are granted and the complaint must be dismissed.
A third plaintiff, St. Luke's Pentecostal Church, Inc. was originally a party to this action. However, on June 19, 2001, St. Luke's voluntarily dismissed its claims.
BACKGROUND
I will only briefly state the relevant facts as I assume familiarity with the two prior opinions in this case.
Minnich owns and operates a woodworking shop in the Bronx. The ESDC is a state public benefit corporation to which the New York legislature has delegated the power to acquire real property pursuant to the provisions of the EDPL. The EDPL sets forth the procedures under which the state may exercise its eminent domain powers. Although personal service of notice of the hearing is not required by the EDPL, notice by publication is required and notice by publication is again required upon the issuance of the determination and findings. The statute does not require the government to provide notice of the 30 day right to appeal. On May 26, 1999, the ESDC mailed notice to Minnich of a public hearing scheduled for June 23, 1999, regarding a proposed development project and the possible condemnation of Minnich's property. Minnich attended the hearing and took the opportunity to speak and submit a written statement opposing the project. On September 20 and 21, 1999, the ESDC published the determination and findings which stated that the project and the attendant condemnation was approved. Although once again not required by the EDPL, the ESDC mailed a copy of the determination and findings to Minnich, and then, at Minnich's request, mailed a second copy to him on September 29, 1999. The ESDC did not inform Minnich of the fact that EDPL § 207 provides only a 30 day window in which to appeal the decision contained in the determination and findings. In September, Minnich also formally retained Michael Rikon, Esq., as counsel, following several months of discussion with him regarding representation in the matter. Rikon practices in a firm that specializes in condemnation claims and is well versed in condemnation law.
The determination and findings is the document that is mandated by the EDPL to set forth the decision as to whether property will or will not be slated for condemnation.
EDPL § 207(A) limits a property owners right to appeal to 30 days after publication of the determination and findings.
A) Any person or persons jointly or severally, aggrieved by the condemnor's determination and findings made pursuant to section two hundred four of this article, may seek judicial review thereof by the appellate division of the supreme court, in the judicial department embracing the county wherein the proposed facility is located by the filing of a petition in such court within thirty days after the condemnor's completion of its publication of its determination and findings pursuant to section two hundred four herein. Such petition shall be accompanied by proof of service of a demand on the condemnor to file with said court a copy of a written transcript of the record of the proceeding before it, and a copy of its determination and findings. Upon receipt of such petition and demand, the condemnor shall forthwith deliver to the court a copy of the record and a copy of its determination and findings. The proceeding shall be heard on the record without requirement of reproduction. If such proposed public improvement is located in more than one judicial department such proceeding may be brought in any one, but only one of such departments and all such proceedings with relation to any single public project shall be consolidated with that first filed.
Mr. Rikon testified that he had been practicing law for 31 years, most recently with Goldstein and Goldstein, a well recognized condemnation firm. He currently serves as Chair of both the New York County Lawyers Condemnation Committee and the American Bar Association's Condemnation Committee, has served as Assistant Corporation Counsel in the condemnation division and as a consultant to the New York State Commission on Eminent Domain.
Minnich did not bring a timely challenge to the determination and findings. However, on November 8, 1999, approximately twenty days after the expiration of the 30 day period to appeal, he initiated an Article 78 proceeding in New York State Supreme Court challenging the condemnation on several grounds, including that it was unconstitutional as it did not serve a public purpose. Two days later, on November 10, 1999, the Supreme Court transferred the matter to the Appellate Division, noting that the case "is transferred forthwith to the Appellate Division, First Judicial Department in view of the fact that the Appellate Division only has jurisdiction of the subject matter of the petition (EDPL) § 207(c)(a)). The Appellate Division, after reviewing the arguments, issued an opinion that dismissed the matter as time barred. See East Harlem Business and Residence Alliance, Inc. v. Empire State Development Corp., 709 N.Y.S.2d 174 (App.Div. 2000). Minnich did not appeal this decision. Instead, on October 8, 2000, he brought the instant proceeding by Order to Show cause and sought preliminary injunctive relief. He challenged the constitutionality of the statute, both facially and as applied, on the grounds that it 1) failed to require actual notice of the public hearing, the determination and findings, and the 30 day period to appeal and 2) failed to provide an adversarial proceeding in which to challenge the condemnation. On January 11, this Court denied injunctive relief on the ground that he had failed to satisfy the imminent harm prong required for such relief. Minnich and the ESDC have cross moved for summary judgment.
In this proceeding Minnich was represented by Jack Lester, another attorney with experience in the eminent domain law. Lester apparently did not believe that Minnich was limited in bringing his claim under EDPL § 207, rather he believed that he could bring a timely claim within 120 days of the government approval of the condemnation in the form of an Article 78 proceeding.
B. William Brody
In 1996, William Brody purchased property in the Village of Port Chester on which he renovated two small buildings that he now rents to several small businesses. On May 22, 1999, the Village published notice in the Journal News of an upcoming hearing regarding the potential condemnation project which encompassed Brody's property. Although the Village did not personally notify Brody of the hearing, he learned of it, attended, and spoke. After the hearing, the Village realized that they had not provided adequate notice by publication in compliance with the EDPL requirements, and, on July 6, 1999, it held a second hearing. Brody asserts that he did not learn of this hearing and, therefore, did not attend. After the second hearing, on July 18 and July 19, in compliance with EDPL § 204, the Village published a summary of its determination and findings in the Journal News, stating that it had approved the condemnation of the property. Pursuant to EDPL § 207, Brody's right to appeal the determination expired 30 days thereafter. He claims that he was unaware of this limitation and therefore failed to file a timely appeal.
The Village explains that it published notice of the June 7 hearing for only one day rather than the five successive days as required by the EDPL. When the Village discovered the flaw, it scheduled the new public hearing for July 6 and published the public notice in the local paper for the requisite five day period. Zarin Aff. ¶ 35-37.
On April 25, 2000, the Village filed a petition in New York State Supreme Court, Westchester County to acquire title to the project area, including Brody's property, pursuant to EDPL § 402. On May 17, 2000, Brody challenged the petition and filed, through counsel, a verified answer, which set forth three affirmative defenses: I) that the Village violated the United States and the New York Constitutions, as well as the EDPL, when it attempted to take Mr. Brody's property without making an offer to compensate him, 2) that the project was not for a public purpose because the developer had not negotiated with him in good faith to provide him fair compensation, and 3) that the Village failed to ensure that adequate sums were in place to pay any condemnation award. After initially denying the Village's petition on the ground that the Village had failed to offer compensation to Brody, the court, on reargument, granted the Village's petition on the condition that it make Brody an offer for compensation within 60 days. In an Order dated November 8, 2000, the court held that
There is no absolute requirement that there be an offer of compensation prior to vesting. Undue delay in making such an offer, however, would appear to be violative of respondent's due process constitutional rights. Wherefore, under the circumstances of this case, an offer must be made within 60 days of service of a copy of the order to be made hereon (citations omitted).
Brody did not appeal the court's ruling but rather, brought the instant action with Minnich on identical grounds. Brody and the Village have now cross moved for summary judgment.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate where there are no disputed issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). On a motion for summary judgment, the moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). But, a party opposing a motion for summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In light of the Second Circuit decision, the legal issues facing each plaintiff are different and therefore best addressed individually.
II. William Minnich
Defendant ESDC has moved for summary judgment, inter alia, on the grounds that Minnich lacks standing and that his claims are barred by the doctrine of res judicata. As I find that these threshold doctrines dispose of Minnich's claims, I need not consider the remaining arguments.
A. Standing
In Lujan v. Defenders of Wildlife, the Supreme Court held that, to satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that th injury will be redressed by a favorable decision. See 504 U.S. 555, 560-561 (1992). "The law of Article III standing is built on a single basic idea — the idea of separation of power." See Jackson-Bey v. Hanslmair, 115 F.3d 1091, 1095 (2d Cir. 1997) (citing Allen v. Wright, 468 U.S. 737, 752 (1984)). Therefore, "the standing inquiry must be answered by reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity." Id. (citations omitted).
Here, defendant ESDC contends that Minnich lacks standing as he received notice of the public hearing and the determination and findings and because he had notice from his counsel of the statutory 30 day time limit to appeal. As it is undisputed that Minnich had actual notice of the public hearing and the determination and finding he clearly lacks standing to challenge the EDPL on these grounds since he cannot show an injury in fact. See Brody v. Village of Port Chester, ___ F.3d. ___, 2001 WL 892921 (2d Cir. Aug. 8, 2001); Jackson-Bey, 115 F.3d at 1095. What is less clear, however, is whether Minnich has standing to challenge the 30 day time limitation, and this inquiry depends upon whether Minnich's counsel's knowledge can be imputed to him for standing purposes.
"In general, when an agent is employed to represent a principal with respect to a given matter and acquires knowledge material to that representation, for purposes of assessing the principal's rights and liabilities vis-a-vis a third person the agent's knowledge is imputed to the principal." See Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994) (holding that appellant's claim was barred by the statute of limitations as his attorney's knowledge was imputed to him and had started the clock running). It is well-established that attorneys are viewed as acting as agents for their clients, and, therefore, court's have held in a variety of circumstances that it is appropriate to impute the knowledge of a litigant's counsel to a litigant. See Veal 23 F.3d at 725; Universal City Studios, Inc. v. Reimerdes, 104 F. Supp.2d 334, 349 (S.D.N.Y. 2000) (imputing an attorney's knowledge to his client for the purposes of determining the timeliness of a motion); Securities and Exchange Comm'n v. H.K. Freeland and Co., 91 Civ. 7986, 1993 WL 33659, at *7 (S.D.N.Y. Feb. 1, 1993) (holding that the respondents were bound to a Stipulation and Order which their attorney had signed, regardless of the fact that they never learned of its precise terms).
Here, as of September 15, 1999, Minnich had retained Michael Rikon, Esq., an attorney well versed in New York's eminent domain law. Furthermore, Minnich had been in communication with and discussed his case with Mr. Rikon prior to formally retaining him, and, in fact, had informed Mr. Rikon of his intent to retain him in July. Thus, even before the 30 day period to appeal began to run, Minnich was represented by counsel who was well aware of the impact of a determination and findings, including the 30 day limitation on appeals.
Minnich contends that despite these facts, his counsel's knowledge should not be imputed to him as he retained counsel for the limited purpose of obtaining compensation for his property. However, Rikon's undisputed deposition testimony clearly reflects the fact that he informed Minnich that he was available to represent Minnich on all matters relating to the condemnation proceeding. See Casolaro Aff, Ex. Q at 25. Given the fact that Minnich had retained experienced counsel and received a copy of the determination and findings, I conclude that Minnich does not have standing to bring this claim. B. Res Judicata
I need not reach the issue, which was scantily briefed, of whether Minnich had standing to bring his claim that the EDPL does not provide an adversarial proceeding in which to challenge a condemnation since it fails both because of res judicata and on the merits as laid out in this Court's previous opinion of January 18, 2001.
Defendant ESDC also contends that Minnich's challenge to the EDPL is bared by res judicata as Minnich brought a previous action in state court in which he could have raised the same claims that he has raised here.
The Full Faith and Credit Statute, 28 U.S.C. § 1738, requires that federal courts give the same res judicata effect to a prior state court decision that another court of the same state would give it. See Allen v. McCurry, 449 U.S. 90, 96 (1980). Thus, I must look to New York law to determine whether Minnich's claim is barred by this doctrine. Under New York law, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction . . . are barred, even if based upon different theories or if seeking a different remedy." See O'Brien v. City of Syracuse, 445 N.Y.S.2d 687, 688 (1981). Here, it is undisputed that, on November 9, 1999, Minnich commenced an Article 78 proceeding in the New York State Supreme Court to enjoin the condemnation of his property on various grounds including that the project was barred by the Fifth and Fourteenth Amendment because the anticipated project was not for a public purpose. The New York Supreme Court transferred the matter to the Appellate Division, sua sponte. The Appellate Division, noting that the proceeding had been transferred as it had been "improperly commenced" as an Article 78 proceeding, considered the action as if it had been brought pursuant to § 207 of the EDPL but rejected Minnich's claims in part because they were untimely.
Minnich contends that his prior Article 78 proceeding should have no res judicata effect. He contends that he could not bring his instant claims in the state court, and therefore he did not have a full and fair opportunity to litigate. See Allen, 449 U.S. 90, 101 (1980) ("Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court."). Specifically, Minnich argues that since the 30 day deadline had passed when he brought his action, the state courts were barred from considering any claims challenging the condemnation, even if they challenged the constitutionality of the lack of notice of the 30 day time to appeal. Not so. Perhaps with a dollop of chauvinism, I am convinced that no New York state appellate court would turn its back on a valid constitutional challenge to a limitations period in a statute on the ground that the limitations period had run, effectively precluding any and all such challenges. The State courts are charged with and are equally capable of evaluating violations of the federal constitution, and I decline plaintiffs invitation to find differently. Instead, I find that, as New York courts have in the past, the Appellate Division would in fact have considered plaintiffs constitutional challenges regardless of its timeliness, if he had raised them. See Metropolitan Transportation Authority v. Pinelawn Cemetery, 522 N.Y.S.2d 586 (App.Div. 1987) (considering condemnee's constitutional challenge to the EDPL in a § 402 proceeding despite the fact that condenmee did not raise the challenge in a timely § 207 proceeding); De Vito v. City of Troy, 421 N.Y.S.2d 719 (App.Div. 1979) (considering petitioner's claim that the notice provision of the EDPL is unconstitutional despite the fact that petitioner brought his petition after the 30 day period had expired).
Minnich also argues that an Article 78 proceeding confers limited jurisdiction on the Supreme Court and consequently some of his claims could not be aired. See Hachamovitch v. DeBuono, 159 F.3d 687, 695 (2d Cir. 1998) ("A petitioner may not challenge the validity of a legislative act or regulation in an Article 78 proceeding but may raise a claim that the administrative application of a rule to him is unconstitutional."). Quite so. However, the Supreme Court transferred Minnich's case, sua sponte, to the Appellate Division, effectively converting it into a section 207 appeal under the EDPL — the appropriate forum for challenging a proposed condemnation. Consequently, the court that actually considered Minnich arguments had jurisdiction to hear any and all challenges that Minnich sought to bring, including those raised in the instant case. See DeVito, 421 N.Y.S.2d 719 (considering petitioner's claim that the notice provision of the EDPL is unconstitutional despite the fact that petitioner brought his petition after the 30 day period had expired). Therefore, I find that Minnich failed to raise these issues in state court although the opportunity to do so was present and that he is not entitled to another bite at the apple here.
II. William Brody
In its decision vacating the preliminary injunction issued by this Court, the Second Circuit held that Brody "having suffered no actual or threatened injury, lacks standing to bring these claims." See Brody v. Village of Port Chester, ___ F.3d. ___, 2001 WL 892921 (2d Cir. Aug. 8, 2001). Thus, the first issue I must address is whether and to what extent this holding is binding here. A. Standing
I only address the Circuit's holding with respect to standing as its holding on the public interest facet in not relevant to considerations of standing and res judicata.
The Circuit held that Brody did not have standing to challenge the lack of personal notice of the public hearing since he had knowledge of the first hearing and that this was sufficient despite the fact that the second hearing was the operable one under the EDPL and because, "Brody has not in any way indicated that he would have raised additional objections at the July 6 hearing had he been provided with notice." See William Brody v. Village of Port Chester, ___ F.3d ___, 2001 WL 892821, at *2 (2d Cir. August 8, 2001). Brody contends that his deposition testimony cured any standing problem since he made it clear that at the time he did not have an opportunity to fully express his views on the condemnation. When asked whether he intended to say anything at the hearing besides what is reflected in the written record, Brody replied, "Well, you really didn't have a chance to say what you wanted to say. So, yes, yes, sure." Although not crystal clear, I find that this allegation is sufficient to convey standing on this claim.
The Circuit also held that Brody lacked standing to challenge the Village's failure to provide him with actual notice of the determination and findings and of the 30 day limitation period in which to appeal because he failed to sufficiently allege lack of knowledge. However, in his declaration in support of this motion, Brody states unequivocally that he did not know that the determination and findings existed or that he had a right to appeal within 30 days. See Brody Decl. at ¶ 27, 28. Thus, Brody has also remedied this deficiency and, it seems clear, has standing to bring this claim.
The Circuit did not reach the issue of whether Brody had standing to bring his claim that the EDPL failed to provide him with an adversarial proceeding in which to challenge the condemnation. As I find that Brody's claim must fail on its judicata grounds, I need not reach this issue.
Unfortunately for Mr. Brody standing, standing alone, is insufficient because his claims are barred by res judicata.
B. Res Judicata
As discussed above, a party's claims are barred by the doctrine of res judicata if he or she had a full and fair opportunity to litigate the claim in a prior proceeding. See O'Brien, 445 N.Y.S.2d at 688.
In Brody's case, the Village contends that his claims are barred by the doctrine of res judicata since Brody could have asserted his instant claims in a prior state court proceeding. Brody does not dispute that there was a prior state court proceeding in which he challenged the Village's condemnation of his property, in part on constitutional grounds, but, like Minnich, asserts that the prior proceeding does bar this action as the state court could not have fully considered these claims, as it was brought under EDPL § 402.
However, as observed above, New York courts when faced with a constitutional challenge to a statute, hear that challenge. See N.Y. CPLR § 103(c) ("If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution."). Courts have considered similar challenges in analogous cases. See Metropolitan Transportation Auth., 522 N.Y.S.2d 586 (App.Div. 1987) (considering condemnee's constitutional challenge to the EDPL in a § 402 proceeding despite the fact that condemnee did not raise the challenge in a timely § 207 proceeding). If Brody had brought the instant challenge in the state proceeding, the New York court would have considered it, just as it considered his argument that the government had an obligation to extend to him an offer of compensation for his home. Thus I find that Brody too is barred by res judicata from asserting these claims, and that summary judgment must be granted in favor of the Village.
CONCLUSION
While summary judgment on res judicata grounds is granted here, the rationale for that decision has no bearing on the very serious underlying issue of what constitutes adequate notice under New York State's condemnation proceedings.
For the above reasons, the summary judgment motions of the ESDC and the Village of Port Chester are granted and the plaintiffs' summary judgment motion are denied. The clerk is instructed to close the case.