MATTER OF WARD v. BENNETT

Ordered that the order and judgment is reversed insofar as appealed from, with costs, the branch of the petitioners' motion which was for leave to amend their pleadings is granted and the cross motion is denied; and it is further

Ordered that the proceeding is converted into an action for a judgment declaring that the denial of the petitioners' application for a permit pursuant to General City Law § 35 constituted a taking without just compensation; and it is further

Ordered that the matter is remitted to the Supreme Court, Richmond County, for further proceeding consistent herewith.

On a prior appeal this Court confirmed the determination of the Board of Standards and Appeals of the City of New York which denied the petitioners' application under General City Law § 35 to erect a one-family dwelling on their property. The Court also found that the petitioners' claim that the denial of their application constituted a taking of their property without just compensation, was not ripe for judicial review (see, Matter of Ward v Bennett, 174 A.D.2d 681). The Court of Appeals, affirming in part and reversing in part, found that the petitioners' taking claim was ripe for judicial review and remitted the matter to the Supreme Court, Richmond County, for further proceedings (see, Matter of Ward v Bennett, 79 N.Y.2d 394). Thereafter, the petitioners moved before the Supreme Court, Richmond County, to restore the proceeding to the calendar and to add a cause of action based upon 42 U.S.C. § 1983. The respondents cross-moved pursuant to CPLR 3211 (a) (7) to dismiss the petition, asserting, inter alia, that the petition failed to allege an unconstitutional taking and that the petitioners could never prove such a claim since they purchased their property in 1966 with knowledge of the paper street called North Burgher Avenue which was depicted on a map filed in 1944. The Supreme Court granted the petitioners' motion to restore the proceeding to the calendar but then granted the respondents' cross-motion to dismiss the petition, finding that: (1) the petitioners failed to submit any evidence that their property could not produce a reasonable return under any permissible use; and (2) the petitioners could never prove an unconstitutional taking because they knew, at the time of their purchase, that the property was mapped for future development.

The Supreme Court erred in converting the respondents' CPLR 3211 (a) (7) cross motion to dismiss into a motion for summary judgment pursuant to CPLR 3211 (c) without any request by the parties, without notice to the parties, and without giving the petitioners any opportunity to make an appropriate record (see, CPLR 3211 [c]; Mihlovan v Grozavu, 72 N.Y.2d 506, 508; Sopesis Constr. v Solomon, 199 A.D.2d 491, 492; compare, Dawson v Higgins, 197 A.D.2d 127, 137). The record does not indicate that the parties charted a "summary judgment course" of action (see, Mihlovan v Grozavu, supra).

In addition, the Supreme Court erred in ignoring the petitioners' claim of a de facto taking. A de facto taking is a permanent ouster of the owner or a permanent physical or legal interference with the owner's physical use, possession, and enjoyment of the property by one having condemnation powers (see, City of Buffalo v Clement Co., 28 N.Y.2d 241, 254-255; Carr v Town of Fleming, 122 A.D.2d 540). Pursuant to General City Law § 35, the respondents could either condemn within a period of 10 years after the filing of the paper map in 1944, or they could grant the petitioners a permit to build (see, General City Law § 35). The purpose of General City Law § 35 is to allow the City to plan for the future without being compelled to immediately acquire title from the owner, while temporarily restricting the owner's use in order to provide for such planning (see, Headley v City of Rochester, 272 N.Y. 197, 205; Rochester Bus. Inst. v City of Rochester, 25 A.D.2d 97, 101). While the City has the power to temporarily restrict the use of land without compensation, for the purpose of conducting studies toward a comprehensive regulatory scheme, the duration of such a period cannot be unreasonable (see, Matter of Russo v New York State Dept. of Envtl. Conservation, 55 A.D.2d 935, citing Matter of Rubin v McAlevey, 54 Misc.2d 338, affd 29 A.D.2d 874; de St. Aubin v Biggane, 51 A.D.2d 1054, 1055, citing Matter of Rubin v McAlevey, supra).

In this case, the petitioners allege that the mapping of their property, the respondents' determination denying their application for a building permit under General City Law § 35, and the denial of that portion of their prior appeal which was to annul the respondents' determination, prevented them from utilizing their land in any manner under the minimum zoning law requirements, and that the respondents did not plan to condemn the property and the paper street was never opened, acquired, or dedicated. According to the petition and supporting documents annexed thereto, this state of affairs has existed since the filing of the map in 1944, a period of 50 years, and since the petitioners purchased the property in 1966, a period of almost 30 years. The facts alleged in the petitioners' pleading therefore established, prima facie, a de facto taking of their property by the respondents (see, Jensen v City of New York, 42 N.Y.2d 1079, 1080, quoting Roer Constr. Corp. v City of New Rochelle, 207 Misc. 46, 51; see also, Archer Gardens v Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609, 612-613; Jensen v City of New York, supra, at 1082, citing Arverne Bay Constr. Co. v Thatcher, 278 N.Y. 222, 232; Matter of Russo v New York State Dept. of Envtl. Conservation, 55 A.D.2d 935, supra; de St. Aubin v Biggane, 51 A.D.2d 1054, 1055, supra; compare, Rochester Bus. Inst. v City of Rochester, 25 A.D.2d 97, 102, supra).

Furthermore, the allegations of the petition demonstrated a "categorical" regulatory taking based on the denial of all economically beneficial or productive uses of the property, and the reference in the petitioners' deed to the 1944 map, did not preclude such a claim (see, Lucas v South Carolina Coastal Council, 505 U.S. 1003, 1014-1018; Pompa Constr. Corp. v City of Saratoga Springs, 706 F.2d 418, 425; de St. Aubin v Flacke, 68 N.Y.2d 66, 70; Vernon Park Realty v City of Mount Vernon, 307 N.Y. 493; Headley v City of Rochester, 272 N.Y., at 197, 205, supra; Petosa v City of New York, 135 A.D.2d 800, 802). The deed does not contain any express statement that the petitioners' property could never be used for the construction of a single-family dwelling as permitted under the zoning laws (see, Lucas v South Carolina Coastal Council, supra). Instead, the deed simply put the petitioners on notice that a portion of their property might, within 10 years of the map filing, be used as a street and that either they would be paid compensation for that use or they would be granted a permit to build on their property (see, General City Law § 35).

Since the respondents have now finally declared "off-limits" all economically beneficial or productive uses of the land, they must pay compensation (Lucas v South Carolina Coastal Council, 505 US, at 1027-1028, supra). Absent any express limitation in the deed, and in light of the purpose of General City Law § 35, the respondents may not propound the notion "that [the petitioners] title is somehow held subject to the `implied limitation' that * * * the [respondents] may subsequently eliminate all economically valuable use[s]" in contravention of the Takings Clause of the Federal and State Constitutions (Lucas v South Carolina Coastal Council, 505 U.S. 1003, at 1028, 120 L Ed 2d 798, at 820, supra). Accordingly, the petitioners demonstrated prima facie entitlement to appropriate relief on their de facto and categorical regulatory taking claims (see, Matter of Ward v Bennett, 174 A.D.2d 681, 682, supra).

Finally, the Supreme Court erred in failing to grant the petitioners leave to amend their petition to add a cause of action based on 42 U.S.C. § 1983 (see, CPLR 3025 [b]; Duffy v Horton Mem. Hosp., 66 N.Y.2d 473; Omni Group Farms v County of Cayuga, 199 A.D.2d 1033; Lawless v City of Buffalo, 177 A.D.2d 1007; Manti v New York City Tr. Auth., 146 A.D.2d 551). The respondents failed to demonstrate any prejudice or surprise by the petitioners' delay in seeking the amendment (see, Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959; Omni Group Farms v County of Cayuga, supra). The 42 U.S.C. § 1983 cause of action arises out of the same transactions and occurrences as the cause of action based on the unconstitutional taking so it will relate back to the date of the original petition and is timely (see, CPLR 203 [e]; Wilson v Garcia, 471 U.S. 261, 266-267; Adamson v City of Provo, 819 F. Supp. 934, 941; 423 S. Salina St. v City of Syracuse, 68 N.Y.2d 474, cert denied 481 U.S. 1008; Duffy v Horton Mem. Hosp., 66 N.Y.2d 473, 476, supra; Lawless v City of Buffalo, 177 A.D.2d 1007, supra; Manti v New York City Tr. Auth., 146 A.D.2d 551, supra; see also, Archer Gardens v Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609, supra).

We have considered the respondents' remaining contentions and find them to be without merit. Mangano, P.J., Bracken, Balletta and O'Brien, JJ., concur.