ADAPTING TO THE FAIR CHANCE FOR HOUSING ACT: A NEW ERA FOR NYC HOUSING PROVIDERS
How New York City’s Fair Chance for Housing Act Is Transforming the Rules for Landlords, Property Managers, and Tenants in the Pursuit of Equity and Compliance
By Cori Rosen
New York City enacted the Fair Chance for Housing Act on Jan. 1, 2025, a transformative law reshaping how criminal history influences housing decisions. Its goal is to address the disparate impact that review and consideration of criminal records may have on the ability of persons of color to obtain housing.
A LANDMARK SHIFT IN HOUSING POLICY
For years, the application process for housing in New York City has been fraught with allegations of discrimination. These claims span a wide range of categories, including discrimination on the basis of, among other things, disability, familial status, citizenship, race, color, lawful income sources, and criminal history. The latter has been particularly contentious, with studies showing that blanket denials of applicants with criminal convictions disproportionately affect people of color. In response, local agencies such as the New York City Department of Housing Preservation and Development (HPD) have pushed for restrictions on how criminal background checks are conducted.
The Fair Chance for Housing Act codifies these efforts into the City Human Rights Law. By restricting the ability to consider criminal history and/or make adverse housing decisions in connection with the same.
The Fair Chance for Housing Act draws a clear line between what constitutes “reviewable criminal history” and what does not. Housing providers are allowed to consider only specific categories, including:
1. Registered sex offenses, irrespective of when they occurred.
2. Convictions for misdemeanors within the past three years.
3. Convictions for felonies within the past five years.
Excluded from review are sealed, expunged, or vacated convictions, as well as certain out-of-state offenses related to health, reproductive care, and cannabis possession that wouldn’t qualify as crimes in New York. This precise delineation compels landlords and housing managers to reassess their screening criteria and application processes to avoid potential liabilities.
THE PROCEDURAL OVERHAUL FOR HOUSING PROVIDERS
The Act requires a radical shift in when and how criminal background checks are conducted. Under the new rules, these checks can only occur after an applicant has been conditionally approved for housing and provided with a signed agreement. Additionally, landlords must:
● Inform the applicant in advance of the intent to perform a background check.
● Provide a written notice, known as the Fair Chance Housing Notice, detailing the process.
● Give applicants at least five business days to address errors or submit mitigating information if adverse action is being considered.
Failure to adhere to these protocols exposes housing providers to significant risks, including civil lawsuits and administrative penalties.
EVALUATING A TENANT’S CRIMINAL HISTORY
Before revoking a lease offer based on a criminal background check, landlords must follow strict procedures, including sharing the report with the applicant and allowing the applicant at least five business days to correct errors or provide mitigating information.
Landlords must assess the applicant’s criminal history in relation to a legitimate business interest and provide a written explanation if adverse action is taken. If landlords use screening companies for background checks, the landlord remains responsible for ensuring compliance with the law and is imputed with any wrongdoing by third party screening companies.
STRATEGIC IMPLICATIONS OF NON-COMPLIANCE
For housing providers, the stakes are high. The Act imposes liability, not only for improper rejections, but also for procedural missteps. This liability could, arguably, be imposed when applications are ultimately approved. Penalties for violations include compensatory and punitive damages, civil penalties, and mandatory policy reforms. Moreover, landlords could face reputational damage and opportunistic lawsuits from advocacy groups or testing agencies seeking to establish patterns of discrimination.
To mitigate these risks, housing providers must take immediate action. Establishing clear policies, training employees, and ensuring strict legal compliance can reduce liability and protect against discrimination claims.
Cori A. Rosen is a Member of the Litigation Department and the Leader of Rosenberg & Estis’ Human Rights Practice.
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LANDLORD & TENANT LAW
DHCR’S INTERPRETATION OF LUXURY DEREGULATION RULE UPHELD
Matter of 160 East 84th Street Associates LLC v. New York State Division of Housing and Community Renewal
2024 WL 5159919
Court of Appeals
(Opinion by Troutman, J.)
In landlord’s article 78 proceeding challenging DHCR’s interpretation of the Housing Stability and Tenant Protection Act (HSTPA), landlord appealed from Supreme Court’s affirmance of Supreme Court’s dismissal of the proceeding. The Court of Appeals affirmed, holding that DHCR’s interpretation of the statute with regard to luxury deregulation had a rational basis.
In 2019, the state legislature enacted the HSTPA, which ended luxury deregulation for rent-stabilized apartments. A cleanup bill provided that the act would take effect immediately, but that any unit that was lawfully deregulated prior to June 14, 2019 would remain deregulated. Landlord in this case owned apartment buildings that obtained luxury deregulation orders before the HSPA for tenants with leases that expired after the statute took effect. DHCR concluded that the apartments did not become deregulated because the leases did not expire until after the HSTPA became effective. Landlord challenged the interpretation, but lost at Supreme Court and the Appellate Division.
In affirming, the Court of Appeals held that even though DHCR was statutorily mandated to issue an order of deregulation before enactment of the HSTPA, the order did not immediately deregulate the apartment, because even under prior law, the apartment did not become deregulated until the expiration of the lease in effect when the deregulation order was issued. The court also rejected landlord’s argument that the apartments would have been deregulated before enactment of HSTPA but for DHCR’s negligent delay in processing landlord’s application for luxury deregulation. The court declined to infer willfulness or negligence from lengthy processing times.
Malkiewicz v. Acquisition America XI LLC
2024 WL 5203878
AppDiv, First Dept (memorandum opinion)
In tenant’s action for a declaration that the apartment is not rent-stabilized, and for injunctive relief and rent charges, landlord appealed from Supreme Court’s denial of its summary judgment motion. The Appellate Division affirmed, holding that triable issues of fact remained about whether the apartment had been eligible for high rent vacancy deregulation.
A rent-controlled tenant vacated the apartment in 2008. Landlord then rented the apartment for $2,125, which was above the then-applicable threshold for high-rent vacancy deregulation. No administrative fair market rent appeal was filed within the next four years, but tenant subsequently challenged the deregulation. The evidence submitted by landlord indicated that the first post-control tenant left after one year, and the next two leases provided for rent of $1,700, below the vacancy decontrol threshold. Tenant also submitted evidence that the rent-controlled tenant who vacated in 2008 was paid $20,000 to vacate. On this basis, Supreme Court denied landlord’s summary judgment motion.
In affirming, the Appellate Division indicated that tenant had not eliminated all triable issues of fact about whether the destabilization was legitimate. The court focused on the payment to the last controlled tenant, and whether it indicated an intent to deregulate.
CO-OPS AND CONDOMINIUMS
McCabe v. 511 West 232nd Owners Corp.
Court of Appeals
(5-2 decision; Opinion by Halligan, J; dissenting opinions by Wilson, C.J., and Rivera, J.)
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In an article 78 proceeding brought by a romantic partner of a deceased co-op shareholder challenging the coop’s refusal to transfer shares, romantic partner appealed from the Appellate Division’s affirmance of Supreme court’s denial of the petition and dismissal of the proceeding. The Court of Appeals affirmed, holding that the co-op’s action did not constitute housing discrimination based on the partner’s marital status within the meaning of the New York City Human Rights Law.
Partner lived with the shareholder for 13 years until his death. The shareholder’s will left the unit to his partner. The proprietary lease for the unit provided that the co-op’s consent was not necessary if shares were assigned to the lessee’s spouse. With respect to assignment to other family members, the lease provided that consent was necessary, but would not be unreasonably withhold if the family member were financially responsible. When shareholder died and the partner sought a transfer of the shares and the lease, the board noted that she would have to show that she was a spouse or financially responsible family member. When she did not provide a marriage license or evidence demonstrating that she was a family member, the board invited her to apply in the same manner as a prospective purchaser. When she submitted the documentation, the board rejected her application. The partner then brought an article 78 proceeding contending that the board’s
refusal to transfer the lease and shares violated the Human Rights Law’s prohibition on discrimination based on marital status. Supreme Court denied the petition and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.
In affirming, the Court of Appeals majority emphasized that a plain reading of the term is that marital status reflects the legal condition of being single, married, legally separated, divorced or widowed. The court also pointed to legislative history indicating that marital status “refers to whether a person is participating in a marriage, not the nature of one’s relationship with another specific person.” As a result, the co-op corporation did not violate the Human Rights law by limiting the right to assign to spouses of a shareholder. Judges Wilson and Rivera, in separate dissents, argued for a broader construction of “marital status” as used in the Human Rights Law.
CO-OP HAD RIGHT TO DEMAND REMOVAL OF WHIRLPOOL TUB
Avrahami v. 235 West 108th Street Owners Corp.
2024 WL 4885735
AppDiv, First Dept.
(memorandum opinion)
In co-op shareholder’s action for declaratory relief and damages, shareholder appealed from Supreme Court’s award of summary judgment to the co-op corporation. The Appellate Division affirmed, holding that the proprietary lease gave the co-op the right to mandate removal of the shareholder’s whirlpool tub and replacement with a standard tub.
Shareholder’s whirlpool tub began sinking due to water leaks from shareholder’s master bathroom. The co-op required shareholder to remove the tub and refused to permit reinstallation of a whirlpool tub. Shareholder then sought declaratory relief, alleging breach of the covenant of quiet enjoyment, the covenant of good faith and fair dealing, and breach of fiduciary duty. Supreme Court awarded summary judgment to the co-op corporation.
In affirming, the Appellate Division noted first that the absence of an express prohibition on whirlpool tubs was not dispositive in light of the proprietary lease provision giving the cooperative the right to demand removal of an appliance that, “in the Lessor’s sole judgment” is causing damage to the building. The lease also provides that if a shareholder removes a fixture, it must repair the damage and replace the fixture with others of a kind customary in the building and satisfactory to the lessor. The court held that even if other shareholders were permitted to retain whirlpool tubs, tenant could not prevail on an unequal treatment claim because there was no evidence that other tubs were causing damage to the building.
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REAL PROPERTY LAW
CO-TENANT’S ADVERSE POSSESSION CLAIM RAISES ISSUES OF FACT ABOUT HOSTILITY
Buckheit v. Aiken
2024 WL 4897715
AppDiv, Second Dept. (memorandum opinion)
In an estate’s action for partition and sale of real property, co-owner appealed from Supreme Court’s denial of her motion for summary judgment on her counterclaim alleging that she had acquired title by adverse possession, and granting the motion of a purchaser from the decedent’s heirs dismissing the adverse possession claim against them. The Appellate Division modified, holding that questions of fact precluded summary judgment on the adverse possession claim.
Foote and Geoffrey Aiken purchaser Brooklyn property as tenants in common in 1973. Foote died intestate in 1977 and no one claimed his interest in the property. Aiken managed the property until his death in 1994, and he devised his property to his wife, Enid, who has continued to manage the property and collect rent. In 2013, she sought to appoint a public administrator to administer Foote’s estate. Three years later, the public administrator, acting on behalf of Foote’s estate, brought an action for partition and sale. Enid Aiken counterclaimed, alleging that she had acquired sole title by adverse possession. Third parties who had obtained conveyances from Foote’s alleged heirs, appeared to assert an ownership interest. Aiken moved for summary judgment, seeking dismissal of the complaint, seeking judgment on her adverse possession counterclaim, and seeking judgment on her third-party complaint against the claimant’s through the Foote heirs. Supreme Court denied Aiken’s summary judgment motion and granted summary judgment to the purchasers from the Foote heirs. Aiken appealed.
In modifying, the Appellate Division first held that Aiken had failed to establish an entitlement to judgment as a matter of law because she had not established that her claim was hostile and under a claim of right against the cotenant and because she failed to establish that she had a reasonable basis for her belief that the property belonged to her alone. But the court held that Supreme Court had erred in awarding summary judgment to the claimants through the Foote heirs because there were triable questions of fact about whether the possession was hostile and under a claim of right for the 20-year statutory period.
COMMENT
Under RPAPL §541, the presumption that cotenants possess the property for the benefit of each other is rebutted upon ouster, or upon one cotenant’s continuous, exclusive occupation of the property for 10 years, at which point the presumption shifts and the occupying cotenant begins to hold the property adversely. In Myers v. Bartholomew, 91 N.Y.2d 630, the court held that an out-of-possession cotenant was entitled to summary judgment dismissing the adverse possession claim of a co-tenant who had been in exclusive possession for 13 years, construing RPAPL §541 to mean that the cotenant must adversely possess the property for an additional 10-year period after an initial period of 10 years. Thus 20 years of continuous, exclusive occupation is required to acquire title by adverse possession.
The 2008 amendments to RPAPL §501 introduced a new requirement: to establish a claim of right, adverse possessors must demonstrate a reasonable basis of belief the property belongs to them. How this requirement will be applied to adverse possession claims by co-tenants remains to be seen.
Courts have not had to address this issue yet because most past cases involve cotenants whose adverse possession claims vested prior to enactment of the amendments. For example, in Galli v. Galli, 36 Misc. 3d 1203(A), the court held the 2008 amendments did not apply because the occupying co-tenant’s adverse possession claim began accruing in 1972 and ultimately vested by 1992. Because occupying tenant and his parents had been in exclusive possession for more than 20 years, occupying co-tenant had established title against his aunt.
BONA FIDE PURCHASER OF PROPERTY SOLD AT FORECLOSURE IS PROTECTED AGAINST CLAIMS THAT THE FORECLOSURE SALE WAS ERRONEOUS
Puretz v. Fannie Mae
2024 WL 5063304
AppDiv, Second Dept. (memorandum opinion)
In former owner’s action to quiet title to land erroneously sold at a foreclosure sale, buyer appealed from Supreme Court’s grant of summary judgment to former owner. The Appellate Division reversed and granted summary judgment to the buyer, holding that as a bona fide purchaser, buyer was entitled to keep the property.
After a foreclosure judgment was entered against former owner, a referee’s deed was issued to Fannie Mae. Fannie Mae then executed a quitclaim deed to buyer. Meanwhile, former owner had obtained a reversal of the foreclosure judgment based on lack of personal jurisdiction. Following the reversal, former owner brought this action to quiet title to the land and Supreme Court granted summary judgment to former owner. Fannie Mae and buyer appealed.
In reversing, the Appellate Division held that although an owner who obtains a reversal of a foreclosure judgment can generally seek restitution of the property lost by the judgment, the owner is limited to a recovery of the value of the real property when title is acquired by a purchaser in good faith and for value. In this case, buyer established title after the foreclosure sale, without knowledge of former owner’s successful appeal. Former owner had also not obtained a stay of the foreclosure sale. As a result, buyer established that it was entitled to protection as a purchaser in good faith and for value.
COMMENT
CPLR 5523 provides that a mortgagor who invalidates a foreclosure judgment on appeal is not entitled to restitution against a bona fide purchaser. In Iovino v. Deutsche Bank Nat’l Trust Co., 217 A.D.3d 848, the Second Department dismissed mortgagors’ claim against purchasers who had bought the property from a successful bidder at foreclosure sale conducted before the mortgagors obtained reversal of the judgment of foreclosure. Mortgagors had brought the action for restitution against both the mortgagee and purchasers. In dismissing the claim against purchasers, the court emphasized that mortgagors had not obtained a stay pending the appeal, and that purchasers were therefore entitled to rely on the judgment of foreclosure and sale. The court also noted that subsequent purchasers remain bona fide purchasers even if they paid an inadequate price for the property.
Even if a purchaser has actual knowledge of mortgagor’s claim, some courts have suggested, in dicta, that the purchaser is protected if the mortgagor failed to file a notice of pendency. For instance in 425 East 26th Street Owners Corp. v. Beaton, 128 A.D.3d 766, the court upheld a judgment of foreclosure and sale for nonpayment of co-operative common charges, but indicated that even if the shareholder’s challenge to the foreclosure judgment were successful, she would not have been entitled to recovery of the property because
she did not demonstrate the existence of a valid notice of pendency. In the absence of the notice, the court held that actual knowledge was “not legally significant.”
The owner of a property erroneously sold in a foreclosure sale to a bona fide purchaser may only seek monetary restitution from the party who successfully brought the foreclosure action. In U.S. Bank Nat’l Ass'n v. Vanvliet, 24 A.D.3d 906, the Third Department, in holding that a hearing was necessary to determine whether mortgagee had obtained personal jurisdiction over mortgagor, indicated that because it was conceded that the purchaser was a bona fide purchaser, the mortgagor would only be entitled to monetary restitution against the mortgagee. Generally, monetary restitution is limited to either the value or the purchase price of the property in dispute. C.P.L.R. 5523.
TOWN NOT STRICTLY LIABLE FOR EMITTING POLLUTANTS INTO LAKE
Vacation Village Homeowners Association, Inc. v. Town of Fallsburg 2024 WL 5080205
AppDiv, Third Dept.
(Opinion by McShan, J)
In an action by homeowners association and individual homeowners for private nuisance and for strict liability for emitting pollutants into a lake, homeowners appealed from Supreme Court’s dismissal of their strict liability claims and denial of their summary judgment motion on the private nuisance claim. The Appellate Division affirmed, holding that questions of fact remained on the nuisance claim and that operation of a wastewater treatment plant was not an activity that generated strict liability.
The homeowners association is comprised of 220 homes on 144 acres and owns a lake into which the town’s wastewater treatment plant releases allegedly hazardous substances that have allegedly caused algal blooms and toxic algae that have made the lake unusable for recreational and aesthetic uses. The association and some of its members brought this action contending that the town was liable for private nuisance and that the town was strictly liable for harm caused by its discharges. The town contends that the state Department of Environmental Conservation (DEC) has issued a permit authorizing limited discharges, and the town has not exceeded those limits. Supreme Court dismissed the strict liability claim and denied the association’s summary judgment motion on the private nuisance claim.
In affirming, the Appellate Division first held that there were questions of fact about the substantiality and unreasonableness of the interference and about whether the treatment plant’s discharges were the cause of the conditions in the lake. As a result, the association was not entitled to summary judgment on the nuisance claim. The court also held that in light of the public benefit generated by the treatment plant, its operation was not an abnormally dangerous or ultra-hazardous activity that would be the subject of a strict liability claim.
DEVELOPMENT
LANDOWNER LACKS STANDING TO CHALLENGE NEGATIVE SEQRA DETERMINATION WITH RESPECT TO PROHIBITION OF USE
ON ITS OWN PARCEL
Seneca Meadows, Inc. v. Town of Seneca Falls
2024 WL 5180778
AppDiv, Fourth Dept.
(3-2 decision; memorandum opinion; dissenting memorandum)
In landowner’s article78 proceeding challenging the town’s negative declaration under SEQRA with respect to a proposed law that would prohibit operation of a waste management facility, a citizen’s group appealed from Supreme Court’s determination that landowner had standing to bring the proceeding. A divided Appellate Division reversed, holding that landowner lacked standing because it alleged only economic injury, not environmental injury.
Landowner owns a solid waste management facility that would be directly impacted by the town’s proposed local law. Based on that ownership, Supreme Court concluded that landowner had standing to challenge the town’s SEQRA determination. A citizens’ group that had opposed landowner’s standing in Supreme Court appealed from Supreme Court’s determination.
In reversing the Appellate Division majority held that because landowner failed to allege any environmental injury, landowner failed to establish standing because economic injury does not fall within the zone of injury SEQRA seeks to protect. Justices Smith and Bannister dissented, arguing that an owner whose property is the subject of a proposed governmental action need not allege environmental injury to have standing to challenge a SEQRA determination.
COMMENT
In two cases, the Court of Appeals has held that a landowner whose property is the subject of a rezoning need not plead the likelihood of specific environmental harm when challenging the local board’s SEQRA review. In Har Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, the court held that a landowner had standing to challenge a SEQRA determination in the context of a rezoning of its parcel from commercial to residential use even though landowner’s complaint alleged only unspecified “eventual environmental consequences.” The court went on, however, to sustain the rezoning after concluding that the environmental review complied with SEQRA. Similarly, in Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, the court held that landowner had standing when it challenged a proposed zoning change prohibiting mining operation even though the harm alleged was primarily economic rather than environmental. But the court then rejected landowner’s clam on the merits, concluding that the town board took the requisite hard look at environmental issues.
Although the decision in Seneca appears inconsistent with Har and Gernatt, Seneca is distinguishable from those cases in two ways. First, in Seneca, unlike Har and Gernatt, the trial court found that the SEQRA review was inadequate. As a result, the court could not uphold standing and dismiss on the merits. Second, as the majority noted, the landowner in Har, unlike the landowner in Seneca, at least alleged unspecified environmental injury. Whether those distinctions provide a sufficient basis for ignoring the language in Har and Gernatt is an open question.
UDC’S PROJECT PLAN FOR PENN STATION AREA UPHELD
Matter of AAG Management, Inc. v. New York State Urban Development Corp.
2024 WL 5048880
AppDiv, First Dept (memorandum opinion)
In a proceeding by owners of buildings challenging the Urban Development Corporation’s approval of a general project plan (GPP) that would cover the area in which their buildings are located, building owners appealed from Supreme Court’s dismissal of the proceeding. The Appellate Division affirmed, holding that the UDC’s public purpose findings were entitled to extraordinary judicial deference.
The Urban Development Corporation approved a plan (the GPP) for redevelopment of the Penn Station area of Manhattan. The plan, which was designed in part to provide funding for Penn station improvements, would permit construction beyond what the New York City zoning resolution authorizes. To justify the plan, the UDC presented facts showing that the site was outmoded, underbuilt and insufficiently utilized. In particular, the UDC focused on poorly located subway entrances, narrow sidewalks, inadequate plazas, and outmoded building stock. Building owners, whose buildings might ultimately be taken by eminent domain to permit realization of the plan, brought this proceeding challenging the UDC’s determination as arbitrary and capricious. Supreme Court denied the petition and building owners appealed.
In affirming, the Appellate Division emphasized the deference owed to agency determinations of blight so that courts would not unduly restrict governmental efforts to improve the urban environment.
PLANNING BOARD’S GRANT OF SITE PLAN AND SPECIAL PERMIT UPHELD
Ross v. Village of Fayetteville
2024 WL 5181127
AppDiv, Fourth Dept.
(memorandum opinion)
In a neighbor’s article 78 proceeding challenging the town planning board’s grant of site plan approval and a special permit, neighbor appealed from Supreme Court’s denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the board had properly issued a negative declaration under SEQRA, and its issuance of the special permit was not arbitrary or capricious.
Developers sought to convert a vacant manufacturing facility into a grocery store. The planning board issued a negative declaration under SEQRA and granted developer a special permit and site plan approval. Neighbor then brought this article 78 proceeding, which Supreme Court dismissed. Neighbor appealed.
In affirming, the Appellate Division concluded that the record indicated that the board had taken the requisite hard look at potential environmental impact. The court rejected neighbor’s argument that the board failed to set forth specific findings of fact when it issued its negative declaration, noting that the protracted review process, during which developers were required to modify and supplement their initial application to satisfy the board’s concerns, provided a basis for concluding that the board’s decisions had a rational basis.
EMINENT DOMAIN LAW
CONDEMNATION UPHELD BECAUSE IT DID NOT INTERFERE WITH PRIOR PUBLIC USE
Matter of JHK Development, LLC v. Town of Salina 2024 WL 5181123
AppDiv, Fourth Dept.
(memorandum opinion)
Landowner brought a proceeding to annul a town’s condemnation of ½ acre for construction of a road accessing a new development. The Appellate Division confirmed the determination, holding that the condemnation served a public purpose and did not interfere with a prior public use.
Landowner operates a dermatology practice. Next door, a developer plans to replace a vacant candle factory with a mixed-use development that would include an indoor soccer and lacrosse center. To permit construction of a second entrance to accommodate the anticipated traffic, the town moved to condemn a portion of landowner’s parcel. The condemned land included an area subject to a public drainage easement. Landowner objected to the condemnation.
In confirming the town’s determination, the Appellate Division first rejected landowner’s claim that the condemnation would not serve a public use or purpose. The court concluded that redevelopment of the dilapidated factor constituted a public purpose and the condemnation facilitated that purpose. The court then rejected the argument that the determination should be annulled because the drainage easement was a prior public use. The court concluded that the construction of the new entrance would not interfere with use of the drainage easement.
COMMENT
If the condemnation of property materially interferes with use of land already impressed with a public use, the condemnation is invalid unless the state or local legislature has expressly or impliedly authorized the taking. In New York Cent. & H.R.R. Co. v. City of Buffalo, 200 N.Y. 113, the Court of Appeals upheld the city of Buffalo’s condemnation of land owned by the railroad and impressed with a public use, but held that the condemned land was subject to the preservation of an easement in favor of the railroad. The city had condemned the land to extend a public street, but the court concluded that the city council’s intention was not to exclude the railroad, noting that land can be used for a railroad and a highway crossing at the same time. In passing, the court noted that courts generally do not permit condemnation of land already taken for a public use unless legislative intention to do so is express or necessarily implied. The court applied that principle in City of New York v. Yonkers Indus. Dev. Agency, 170 A.D.3d 1003, invalidating the Yonkers Industrial Development Agency’s condemnation of the MTA’s bus depot because there was no legislative authority for the proposed condemnation; the plan would remove the bus depot completely, thus materially interfering with its prior use. Id. The Agency had condemned the land to redevelop the Hudson River waterfront area and encourage economic revitalization.
Legislative authority is unnecessary for condemnation of property already designated by the government for a public purpose if the new use does not materially interfere with the prior use. In Matter of Vill. of Middleburgh for Use & Benefit of Middleburgh Sewer Dist., 120 A.D.2d 830, the Court held that the village was entitled to condemn a school’s property for a wastewater treatment management facility because the evidence demonstrated the facility would not materially interfere with the school’s land. The school argued
that the facility would create noxious orders and significantly impair the school’s operations. Id. at 831. However, the village’s engineer testified that: 1) the facility would be odor-free; and 2) it would not “impair the use of the remaining school lands and was the best available site.” Id. at 831. Further, in Town of Riga v. Cnty. of Monroe, 166 A.D.2d 39, the Court upheld the County’s condemnation of an existing town road in contemplation of a modest relocation of the road to accommodate a proposed new landfill. The court concluded that acquisition of the town’s interest would not materially interfere with the road’s use.
INDEX
Landlord & Tenant Law
Luxury Deregulation Rule
Matter of 160 East 84th Street Associates LLC v. DHCR
High Rent Vacancy Deregulation
Malkiewicz v. Acquisition America XI LLC
Co-ops and Condominiums
Refusal to Transfer Shares Was Not Discrimination
McCabe v. 511 West 232nd Owners Corp
Right to Demand Removal of Tub
Avrahami v. 235 West 108th Street Owners Corp
Real Property Law
Adverse Possession Claim by Cotenant
Buckheit v. Aiken
Bona Fide Purchaser of Erroneously Foreclosed Property
Puretz v. Fannie Mae
Liability for Emitting Pollutants into Lake Vacation Village Homeowners Association, Inc. v. Town of Fallsburg
Development
Standing to Challenge SEQRA Determination
Matter of Seneca Meadows, Inc. v. Town of Seneca Falls
UDC’S Project Plan Upheld
Matter of AAG Management, Inc. v. New York State Urban Development Corp
Grant of Site Plan and Special Permit
Ross v. Village of Fayetteville
Eminent Domain Law
Condemnation of Area Subject to Public Easement Upheld
Matter of JHK Development, LLC v. Town of Salina
MARCH 2025
Volume 41, Number 7
EDITOR-IN-CHIEF:
Stewart E. Sterk
Mack Professor of Law, Benjamin N. Cardozo School of Law
MANAGING EDITOR:
Steven Salkin, Esq.
BOARD OF EDITORS:
Lawrence A. Kobrin | Cahill Gordon & Reindel | New York
Norman Marcus | Swidler Berlin Shereff, Friedman LLP | New York
Melanie Meyers | Fried, Frank, Harris, Shriver, & Jacobson | New York
Monroe E. Price | Benjamin N. Cardozo School of Law | New York
J. Philip Rosen | Weil, Gotshal & Manges LLP | New York
Christopher A. Seeger | Seeger Weiss, LLP | New York
Stephen B. Siegel | Insignia/ESG Inc. | New York
Steven M. Silverberg | Silverberg Zalantis LLP | Tarrytown
Jeffrey Turkel | Rosenberg & Estis, P.C. | New York
Darryl M. Vernon | Vernon & Ginsburg LLP | New York
CARDOZO STUDENT CONTRIBUTORS: Narmina Aliyeb
Ely Bloch
Levi Boshnack
Philip Choi
Fiona Fruman
Amanda Quintana
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