MacArthur Props., LLC v Metropolitan Transp. Auth.

[*1] MacArthur Props., LLC v Metropolitan Transp. Auth. 2017 NY Slip Op 52012(U) Decided on June 2, 2017 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 2, 2017
Supreme Court, New York County

MacArthur Properties, LLC, Plaintiffs,

against

Metropolitan Transportation Authority, MTA Capital Construction Company, the City of New York, S3 Tunnel Constructors, a joint venture, Skanska USA Civil North-East, Inc., J.F. Shea Construction, Inc., and Schiavone Construction Company, Defendants.



116303/2009



The Tzanides Law Firm, PLLC (Plaintiff)

Hoguet Newman Regal & Kenney, LLP (Defendants Metropolitan Transportation Authority and MTA Capital Construction Company)

Gallet Dryer & Berkey, LLP (Defendants S3 Tunnel Constructors, Skanska USA Civil Northeast Inc., JF Shea Construction, Inc. and Schiavone Construction Company)
Martin Shulman, J.

These summary judgment motions arise in an action plaintiff, MacArthur Properties, LLC (MacArthur or plaintiff), brought seeking $20 million in damages for economic losses comprised of lost rents and diminished market value allegedly caused by the construction of the Second Avenue subway (the Project). MacArthur owns four street level commercial condominiums (the Condominiums) in Manhattan, each of which is located on Second Avenue between East 69th and East 72nd Streets.[FN1] Each Condominium contains as many as five stores which plaintiff leases to commercial entities.

Defendants are the Metropolitan Transportation Authority and its subsidiary and operating affiliate, MTA Capital Construction Company (MTA Capital, jointly referred to as the MTA unless the context requires otherwise), and S3 Tunnel Constructors, a joint venture [*2]comprised of three member-entities, to wit, the co-defendants Skanska USA Civil Northeast, Inc. (Skanska), J.F. Shea Construction, Inc. (Shea) and Schiavone Construction Company (Schiavone) (collectively the Joint Venture).[FN2] In 2010 the parties settled an eminent domain proceeding whereby the MTA acquired rights to part of MacArthur's 72nd St. property to construct a subway entrance.[FN3]

Plaintiff now moves pursuant to CPLR 3212 for partial summary judgment as to liability only. MacArthur also moves pursuant to CPLR §§ 1018 and 1021 to substitute its alleged successor-entity, MacArthur Properties I, LLC (MacArthur I) as plaintiff. Defendants and non-party, the General Contractors Association of New York, Inc. (GCANY), also bring three cross-motions.

First, non-party GCANY, a trade association for the heavy construction industry, cross-moves for leave to appear as a friend of the court and submits a proposed memorandum of law. Second, relying upon documentary evidence, the Joint Venture and its constituent entities cross-move for partial summary judgment, or alternatively, to limit any damages plaintiff could potentially recover against them to the period between February 1, 2009 and September 23, 2010.[FN4] Lastly, the MTA cross-moves for summary judgment dismissing the complaint against it in its entirety. The motion and cross-motions are consolidated for disposition.

THE COMPLAINT

The verified complaint, as amplified by the supporting affidavit of Anthony Contomichalos, the president of plaintiff's managing member, seeks damages for lost rent and diminution in its properties' market value allegedly caused by the following: 1) the City's September 2, 2008 revocation of sidewalk café licenses, allegedly at the MTA's behest; 2) the construction and placement of entry shafts (the Shafts) on the street in front of the Condominiums; 3) the narrowing of sidewalk widths from as much as 20 feet to not less than seven feet; and 4) interference with MacArthur's common law easements of access, light and air, both by the construction of two five story enclosures over the Shafts (the Muck Houses), and placement of fencing and barriers along the sidewalks in front of the Condominiums.[FN5] Central to plaintiff's complaint is its claim, more fully detailed below, that its losses have been "much greater" than those of other property owners affected by the Project. See Complaint, ¶56.

The first cause of action alleges impairment of the common law easements for access and [*3]light. The second and third causes of action, which are asserted against the MTA only, allege, respectively, that the revocation of the sidewalk café permits and the impairment of the common law easements of access and light constitute unlawful takings without just compensation, or are de facto takings. The fourth cause of action seeks recovery for impairment of the easements and the loss of the sidewalk café permits on the theory of a continuing trespass. The fifth cause of action alleges a private nuisance based upon inter alia excessive air and noise pollution, obstructions and vibrations, and the sixth cause of action seeks injunctive relief.

GCANY'S CROSS-MOTION

Over MacArthur's objection, GCANY's cross motion to file an amicus curiae memorandum of law is granted in the exercise of discretion. This court has read the proposed friend of the court brief and is satisfied that it may be of "special assistance to the court" (Kruger v Bloomberg, 1 Misc 3d 192, 197 [Sup Ct, NY County 2003]). Further, because the construction at issue is only the first of the Project's many stages, the issue of liability to abutting property owners could significantly impact the Project's cost. Thus, the issue is of important public interest as well as of concern to the heavy construction industry. "In cases involving questions of important public interest leave is generally granted to file a brief as amicus curiae [citation omitted]" (id. at 196).

SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT

Plaintiff seeks partial summary judgment as to liability on the legal issue of whether, as an abutting land owner, it is entitled to recover damages for defendants' alleged interference with and impairment of its easements for light, air and access; the revocation and non-renewal of two of its commercial tenants' sidewalk café permits; and for trespass and nuisance based upon defendants' excavation of and construction upon the street and sidewalks between East 69th and East 72nd Streets. MacArthur claims to have been detrimentally impacted in its ability to use, lease and generate rental income since September 29, 2008. Plaintiff's motion and defendants' cross-motions for summary judgment will be addressed simultaneously.

A. Impairment of Easements

Plaintiff's first cause of action seeking damages based upon an alleged impairment of easements is brought against all defendants. MacArthur alleges that in 2008 defendants took possession of the public street "without any authority whatsoever" (Contomichalos Aff., ¶ 26),[FN6] and commenced constructing the Project in accordance with the plans and specifications of the applicable contract between the Joint Venture and the MTA, "by digging out, excavating, and relocating utility lines, taking away sidewalks and parking, and removing the roadway, signs, awnings, canopies and sidewalk cafes . . . in front of, adjacent and in close proximity to the front of the [Condominiums]" (id.).

Public Authorities Law § 1266 (12) conclusively negates MacArthur's contention that defendants lacked authority, providing in relevant part that the MTA:

may . . . occupy the streets of the city of New York for the purpose of doing any work over or under the same in connection with the . . . construction . . . of a transportation facility . . .

This puts to rest plaintiff's contention that the Project was not an authorized use of the public street.

As previously stated, plaintiff contends that it has suffered "a unique and undue burden" (Contomichalos Aff., ¶ 31), in excess of that suffered by others similarly situated because the MTA plans required the Shafts to be dug directly in front of its premises, one on 72nd Street and one on 69th Street, which "have been used to excavate and construct the entire length of the proposed tunnels. . . The loss to MacArthur is much greater than to any other abutting owner along the entire length of the subway line" (id.). Yet, the affidavit of Alaeden Jlelaty (Jlelaty), the Joint Venture's senior project manager, contradicts plaintiff's contention that the Shafts covered by the Muck Houses were used to excavate the entire tunnel.

Jlelaty states, and MacArthur's opposition to the Joint Venture's cross-motion does not dispute, that the Joint Venture excavated and constructed a "launch box" (the Launch Box), measuring 900 feet by 75 feet and 75 feet deep between 91st Street and 95th Street, from which the excavated material for the tunnels was removed (Jlelaty Aff., ¶ 10). In contrast, the Shafts were 40 and 50 feet deep, respectively, and only the excavated material for the Shafts themselves and the 72nd Street underground station were removed through the Shafts (id.). This was but one of 16 stations planned for the entire Project (Contomichalos Aff., ¶12), all of which will have muck houses constructed as the Project progresses. All have abutting owners who will share the same burden as MacArthur. Thus, there is no factual issue as to whether plaintiff has suffered an undue burden by the tunnels being excavated through the Shafts.

Plaintiff also alleges that the Muck Houses reduced the width of the former sidewalk to not less than seven feet, however, it has not alleged that defendants reduced the sidewalk width to less than the five foot minimum width required by New York City regulations. Plaintiff also argues that the Project has been unreasonably delayed, citing a change in plans as to where to place the 72d Street station entryway, but MacArthur has not presented any evidence of the duration or significance of such alleged delay.

Plaintiff states that "[m]any of MacArthur's storefronts have remained empty for years because nobody would lease space at any price under such conditions" (Contomichalos Aff., ¶ 43). Plaintiff argues that:

there can be no dispute that the blocking of the show windows, and the narrowing of the sidewalks and the dust, noise and vibrations from the daily explosions and the thousands of truckloads of excavated earth, stone and muck that was excavated from in front of MacArthur's properties was a direct cause and a substantial factor of the loss of tenants and rental income which greatly diminished the value of the properties during the construction

(Tzanides Reply Aff., ¶ 27). Plaintiff essentially argues that the court must rule as a matter of law that there can be no factual question as to either the legal or proximate cause of MacArthur's claimed economic losses, and that liability must be imposed based upon the allegations of blocked store windows, barriers around the sidewalk, and the Project's construction activities in the Condominiums' vicinity.

Under the circumstances, summary judgment as to liability cannot be presumed, but must be supported by evidence in admissible form demonstrating that impairment of MacArthur's easements of access and light proximately caused the claimed economic injuries as a matter of [*4]law, rather than the incidental effects of the Project itself. As the Appellate Division, First Department stated in Germenten v Bradley Contr. Co., 186 AD 868, 872 (1st Dept 1919):

There is no doubt that the plaintiff's business suffered as a result of the prosecution of the subway work in front of her premises; but it was, so far as the proof shows, the same kind of annoyance and inconvenience that people living along the line of a great public improvement have to put up with temporarily, and for which, in default of proof of damage resulting from trespass, or from negligence, or from invasion of easements, there is no remedy [citation omitted].

Germenten involved an action by the owner of a rooming house at 62nd Street and Lexington Avenue for lost profits as a result of tenants allegedly leaving during the construction of the Lexington Avenue subway in front of the rooming house. The trial court awarded damages based upon a trespass occasioned by a disturbed sewer pipe that caused odors to permeate the premises. In reversing the award, the Appellate Division, First Department stated:

To attribute the failure to rent rooms to the trespass was to indulge in mere speculation. Some proof was given that certain lodgers vacated their rooms because of dissatisfaction, but in each case the assigned cause was noise incident to the work. There was no relation between the alleged trespass and the noise. The same considerations apply to the claim for the alleged taking of the easements of light and air in consequence of the maintenance of a telpher or temporary structure in the street, which was for the purpose of permitting excavated materials to be removed from the subway excavation.

(id. at 871).

In Germenten, as here, temporary structures (i.e., the Muck Houses, barriers and equipment) were placed in the street in front of the plaintiff's premises and found not to be actionable. Highly pertinent here is Germenten's finding that attributing any economic loss to a trespass upon easements would be entirely speculative. In this case, as in Germenten, there is no evidentiary basis to support a finding that purportedly impaired easements proximately caused the claimed economic loss, as opposed to the impacts of the Project itself. Although MacArthur alleges that the "muck houses and other construction equipment were so massive that they completely blocked the MacArthur storefronts and the sidewalks in front of them" (Contomichalos Aff., ¶37), MTA Capital Vice President Timothy Gianfresco irrefutably attests that "[e]ven while the muck houses were in place, sunlight was able to fall directly on the sidewalk, as seen in the photographs annexed hereto as exhibit D" (Gianfresco Aff., ¶16).

MacArthur's photographic evidence of barriers and fencing between the sidewalk and the Project is insufficient to establish its prima facie case that access to its premises during the construction met the standard for recovery, to wit, that such access was unsuitable as it was inadequate to the access needs inherent in the highest and best use of the property involved (Priestly v State of New York, 23 NY2d 152, 156 [1968]). Priestly involved the condemnation of contiguous parcels that changed the plaintiff's access. However, damages may not be awarded for a change which results in access which is merely circuitous even though the value of the property is diminished thereby (id. at 155). Such damages are considered to be "damnum absque injuria" (Selig v State of New York, 10 NY2d 34, 39 [1961]).

With respect to awards for consequential damages due to impaired access, the Court of Appeals in Priestly found that "mere inconvenience of access is insufficient to constitute [*5]unsuitability . . . and that '[s]uitable access now is any access by which entrance may be had to a property without difficulty'" (Priestly at 155-156 [citation omitted]). "Where ample access is provided, however, such access cannot be deemed unsuitable merely because it is more difficult or inconvenient to enter or leave the premises (citations omitted)" (Red Apple Rest, Inc. v State of New York, 27 AD2d 417, 419 [3d Dept 1967]). Further,

an abutting owner is not entitled to compensation if the regulation which impairs his access is reasonably adapted to benefit the traveling public and the impairment of access amounts to mere inconvenience rather than such an interference with egress and ingress as to amount to a virtual taking of claimant's property [citations omitted]

(Red Apple Rest, Inc. v State of New York, 46 Misc 2d 623, 629 [Ct Cl 1965], affd Red Apple Rest, Inc. v State of New York, supra). The photographic evidence does not establish that the Project interfered with sidewalk access to such a degree as to amount to a virtual taking. More importantly, MacArthur does not dispute defendants' claims that both Second Avenue and the abutting sidewalks were never entirely closed.

The court will now consider whether, as MacArthur contends, construction of a subway is not a permissible use under the "street use doctrine" (see Story v New York El. R.R. Co., 90 NY 122 [1882]; Matter of Board of R.T. R.R. Commrs. of NY City (197 NY 81 [1909]) (referred to hereafter as Joralemon). Under this principle, if the Project's construction is for a street purpose, defendants would not be liable to MacArthur for damages unless the work was performed negligently or a taking occurred. Joralemon, 197 NY at 99. Conversely, if construction is not a street use, and regardless of whether it is for a public use, defendants would be liable to plaintiff for impairment of its easements without proof of negligence (id. at 99-100). See also Union Course Holding Corp. v Tomasetti Constr. Co., 184 Misc 382, 52 NYS2d 19 (Sup Ct, NY County 1944), affd 269 AD 775 (1st Dept 1944).

Apparently relying upon Story v New York El. R.R. Co., supra, and its progeny, including Joralemon, supra, paragraphs 23 and 24 of the complaint allege that Second Avenue, between 69th and 72nd Streets, is a "public street" which the City acquired for its maintenance "as a street and public highway for the usual and ordinary uses and purposes of a public street and for no other purposes whatsoever." Paragraph 25 alleges that defendants do not have the right to "allow the said Public Street, either above, upon, or beneath the said street to be used or obstructed by any structure that is not a street use."

As previously stated, the "street use" doctrine holds that a municipality, as owner of the roadbed, may perform construction on the public street without liability for an accepted street purpose absent negligence or a taking (see Radcliff's Ex'rs v Mayor of City of Brooklyn, 4 NY 195 [1850]) ("an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow"). More than a century ago the Court of Appeals recognized that property owners whose land abuts a public street have "an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street, for the benefit of their property" (Lohr v Metropolitan El. R. Co., 104 NY 268, 288 [1887]). Such easements are a constitutionally protected property right which, if taken, require payment of just compensation to the owner.

Story involved the construction and operation of an elevated railway on the public street [*6]that permanently impaired easements of access and light and permanently impeded the adjoining owners' use of the public street. Citing Kellinger v Forty-Second St. & Grand St. Ferry R.R. Co., 50 NY 206 (1872), the Court of Appeals in Story (90 NY at 159) recognized that the city streets are owned by the city "not as private property, but in trust for public use . . . for the purpose of maintaining public streets [internal quotation marks omitted])."

The Court of Appeals later characterized Story as holding that a permanent elevated railway structure:

is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the legislature can legalize or sanction without providing compensation for the injury inflicted upon the property of abutting owners

(see Lohr v Metropolitan El. R. Co., 104 NY 268, 288 [1887]; Fobes v Rome, Watertown & Ogdensburg R.R. Co., 121 NY 505, 517-18 [1890]). Fobes stated that Story involved such an absolute and permanent obstruction of part of the public street for a total and exclusive use of that portion of the street that it "amounted to a taking of some portion of the plaintiff's easement in the street for the purpose of furnishing light, air and access to his adjoining lot" (id. at 517).

Relying on Joralemon, plaintiff largely argues that construction of a subway is not a proper "street use." Joralemon involved a claim by an abutting owner for structural damage to his building's foundation due to subway construction by the city:

The use made of the street by the city in constructing the subway and operating, or causing to be operated, a railroad therein, is not a street use as that term is known in the law. As we have recently said, [t]here is a broad distinction between a municipal purpose and a street purpose [citation and internal quotation marks omitted]

(id. at 97). The Joralemon court stated further: a railroad constructed beneath the surface of a street is a new burden not contemplated by the original owner of the land when it was devoted to use as a street. [Plaintiffs], therefore, are entitled upon the facts as they now appear to the full value of their property actually taken without deduction for benefits, and also to just compensation for the injury done to the remainder [citation omitted]

(id. at 100).

Plaintiff relies principally upon Sinsheimer v Underpinning & Found. Co., 178 AD 495 (1st Dept 1917), which involved a jury award for impairment of easements of light and access in favor of a retail lessee of premises abutting subway construction on lower Broadway in Manhattan. The evidence at trial established that for two years and ten months an exposed derrick was mounted over an excavation shaft in front of the premises. Two expert witnesses testified as to the basis of such loss as follows:

There is testimony that the effect of this construction was to darken plaintiff's store so that he had to keep it lit by artificial light all day, the defendant itself furnishing a lamp for use in the vestibule, from about half past four or five o'clock in the winter time. The light was insufficient to properly show goods to customers within the store and they had to be taken to the front thereof or to the windows on the Mercer Street side, and sometimes even into the vestibule to enable the color and texture of the goods to be discerned. The accessibility of the store was affected and its visibility so obscured that the plaintiff's business sign could not be observed either from the other side of the street [*7]or from the north or south, nor in fact anywhere save from within the passageway. The passageway itself became so crowded at times with people watching the operations in the shaft that a sign was erected at the suggestion of the Public Service Commission: "Danger. Keep moving"

(id. at 499).

In Weber & Heilbroner v Holbrook, Cabot & Rollins Corp., 192 AD 93, 97 (1st Dept 1920), the plaintiff operated a retail clothing store on Broadway at 45th Street where a structure similar to that in Sinsheimer was erected for subway construction. The derricks in both Weber and Sinsheimer were open and not contained in a muck house as in the present case. Weber's access was constricted and rerouted, allegedly below grade, and its show windows blocked. The Weber court found the case indistinguishable in principle from Sinsheimer, which involved an interference that was one year and ten months longer. MacArthur alleges that the Shafts, although now removed, were present in the street for over seven years (Contomichalos Aff., ¶ 33).

The Sinsheimer court found Joralemon indistinguishable despite the absence of any physical intrusion in Sinsheimer. Joralemon involved only the right to lateral support for a building. The damage award in Joralemon, unlike the award in Story, was for physical damage to the abutter's building, and was not based on impairment of easements. The Sinsheimer court emphasized that construction of a subway was not a street use, and stated that the city was acting in a proprietary rather than a governmental capacity.

Under Joralemon and Story, the invasion must be substantial and, for plaintiff to be awarded summary judgment as to liability, it must be supported by sufficient evidence in admissible form to establish proximate cause as a matter of law. The Weber court, citing Joralemon, stated:

Damages incident to or caused by mere inconvenience or annoyance of any kind or nature incident to an authorized public improvement in a street are not recoverable, but damages flowing from a substantial invasion of and interference with easements of light, air and access by obstructions continued for a long period of time remaining permanent for such period are recoverable on the theory that the construction of a subway, although authorized by the Legislature and constructed without negligence, is not a street use to which abutting owners must submit without compensation

(Weber, 192 AD at 97 [emphasis supplied]).

The Court of Appeals, a generation after Joralemon, noted:

[t]he highway is continually being dug up for subways, sewers, gas mains, repairs and the like. The inconvenience and damage which a property owner suffers from these temporary obstructions are incident to city life and must be endured. The law gives him no right to relief, recognizing that he recoups his damage in the benefit which he shares with the general public in the ultimate improvement which is being made

(Farrell v Rose, 253 NY 73, 76 [1930]).

MacArthur's submissions do not establish as a matter of law either that defendants substantially invaded plaintiff's easements, or that any such invasion, even if substantial, proximately caused the claimed loss of rental income. Nor does plaintiff allege that the construction and excavation were performed negligently. The cases plaintiff relies upon involve [*8]verdicts rendered after trial, with expert testimony and admitted financial evidence, not merely photographs and tabulations of rental history and projections (see Contomichalos Aff., Exhs. G, I, J, K). Therefore, MacArthur has not demonstrated its entitlement to judgment as a matter of law and its motion for partial summary judgment must be denied with respect to the first cause of action.

In support of its cross motion for summary judgment, the MTA inter alia submits the affirmation of Anthony P. Semancik, Esq., MTA's deputy general counsel, who states that he handles eminent domain proceedings, including those related to the Project. The MTA also submits an affidavit from Timothy Gianfrancesco, MTA Capital's vice-president and deputy program executive, providing a step-by-step description of the defendants' operations in the Project and annexing a series of photographic exhibits depicting the Muck Houses and sidewalk barriers.

The MTA indisputably represents that it is undertaking the Project on behalf of the Transit Authority. Section 1266 (2) of the Public Authorities Law specifically provides that the MTA: "upon the request of the [Transit Authority] . . . may provide for . . . design, acquisition, establishment, [and] construction" for any transit facility (id.). In Public Authorities Law § 1264, the Legislature has expressly declared that the MTA's purposes include:

1. The purposes of the authority shall be the continuance, further development and improvement of commuter transportation and other services related thereto within the metropolitan commuter transportation district . . . [and] develop[ment] and implement[ation of] a unified mass transportation policy for such district.2. It is hereby found and declared that such purposes are in all respects for the benefit of the people of the state of New York and the authority shall be regarded as performing an essential governmental function in carrying out its purposes and in exercising the powers granted by this title [bracketed matter and emphasis supplied] (emphasis supplied).

In opposition to both cross-motions, MacArthur submits the reply affirmation of Kirk P. Tzanides, Esq., together with exhibits including an otherwise unidentified incident report relating to an August 21, 2012 detonation incident (the Detonation Incident) (Exh. G) and a one-page informational sheet apparently published by Skanska and mentioning its activities on the Project (Exh. H).

The MTA's cross-motion for summary judgment dismissing the first cause of action is granted because the evidence the MTA submits sufficiently demonstrates its entitlement to judgment as a matter of law. Conversely, the evidence plaintiff submits in opposition fails to demonstrate the existence of a question of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "A party opposing a motion for summary judgment is bound to lay bare his proofs and make an evidentiary showing that there exists genuine, triable issues of fact" (Oates v Marino, 106 AD2d 289, 291 [1st Dept 1984] [citation omitted]).

The first cause of action seeking damages for lost rental income due to violation of MacArthur's easements of access and light is dismissed because defendants have come forward with sufficient evidence to demonstrate their entitlement to judgment as a matter of law, and plaintiff has failed to present sufficient evidence to demonstrate the existence of a factual issue whether its lost rental value was caused by impairment of its easements of access and light (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New [*9]York, 49 NY2d 557, 563 [1980]).

As noted above, the Public Authorities Law authorizes the MTA to design and construct any transit facility and provides that in doing so, the MTA is exercising an essential governmental function. To the extent that the common law holding that a subway is not a permissible street use would subject the MTA to liability for an insubstantial encroachment upon the easements at issue, it is overruled by the Public Authorities Law and the MTA is shielded from liability on this record in that:

acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action

(Sauer v City of New York, 180 NY 27, 33 [1904], affd 206 US 536 [1907]).

In Sauer, which involved an elevated railroad in the city, the United States Supreme Court noted:

under the more complex conditions of modern urban life, with its high and populous buildings, and its rapid interurban transportation, the requirements of public travel are largely increased. Sometimes the increased demands may be met by subways and sometimes by viaducts. The construction of either solely for public travel may well be held by a state court to be a reasonable adaptation of the streets to the uses for which they were primarily designed

(206 US at 555). Sauer cited with approval Kane v New York El. R.R. Co., 125 NY 164 (1891), which acknowledged the principle that New York City owns the fee in all of its streets upon a trust, requiring that they be permanently preserved as public streets, but that: streets in a city laid out and opened under charter provisions may, under legislative and municipal authority, be used for any public use consistent with their preservation as public streets, and this, although the use may be new, and may seem to impose an additional burden, and may subject lot owners to injury. The mere disturbance of their rights of light, air, and access by the imposition of a new street use must be borne, and gives no right of action . . . [N]either the Story nor the Lahr case imposes any limitation upon the legislative power over streets for street uses. They simply hold that the trust upon which streets are held cannot be subverted by devoting them to other and inconsistent uses

(Sauer, 206 US at 551-552 [internal quotation marks and citations omitted]). The construction of a subway should be viewed as not being inconsistent with a street use, but rather enhancing the purpose of the public street, which is "for the passage of the public . . . and whatever vehicles are used . . . the vehicle must . . . pass along the highway, either on or over, or perhaps under it." Eels v American Tel. & Tel. Co., 143 NY 133, 139 (1894).

In Story, the Court of Appeals, despite its gaslight era view of subways, acknowledged the municipality's right to improve the public street without compensating abutting owners for inconvenience:

The work was a necessary city improvement, and the interruption and obstruction was temporary—ceasing with the completion of the work. It was held that the plaintiff could [*10]not recover, and this upon the principle applied and practiced upon in all our cities, that the municipality, whether owners of the fee of the street, or vested with an easement only, may repair and improve it, "to adapt it to easy and safe passage." It permits the leveling of a street by filling up, or digging away, and if intersected by a stream, the erection of a bridge or tunnel. If in doing either of these things materials are necessarily collected, or an excavation made, to the present and temporary detriment of a lot-owner, he cannot complain. His ownership is subject to the exercise of this public right, and he must submit to the inconvenience in order that the street may be preserved. So in placing a pavement, or excavating for a sewer, the stone for one, and the dirt from the other, may for a time incommode the lot-owner. To this, in like manner, he must submit, as to a burden provided for in his grant, or as one of the terms implied by his location upon a public avenue [emphasis supplied].

(Story, 90 NY at 154).

Excavation for a subway certainly cannot be held to adapt the street to safe passage any less than excavation for a sewer. Unlike in Story and Lahr, any detriment to MacArthur's easements was temporary and must be endured. As observed in Radcliff's Ex'rs v Mayor of City of Brooklyn, supra, a property owner such as the plaintiff herein "often gets the benefit for nothing, when the value of his land is increased by opening or improving a street or highway; . . . It may be added, that when men buy and build in cities and villages, they usually take into consideration all those things which are likely to affect the value of their property . . ." (id., 4 NY at 207).

Here, MacArthur itself acknowledges that "[p]lanning for the Second Avenue subway line dates back to the 1920s and [c]onstruction finally began in the 1970s." See Contomichalos Aff., ¶¶ 10-11. There can be no dispute that MacArthur acquired its properties with full knowledge of the Project as well as the resulting benefits upon its completion. As the Joint Venture notes, plaintiff essentially "moved to the nuisance" and thus cannot be heard to complain.

For the foregoing reasons, the MTA's cross-motion for summary judgment of dismissal is granted as to the first cause of action. With respect to the Joint Venture's cross-motion, the MTA established that it is not liable to MacArthur for the impairment of any easements, was authorized to undertake the Project's construction and did so in a non-negligent manner. There being no allegation of negligence against the Joint Venture, and having merely acted in accordance with the terms of its contract with the MTA, including the Transit Authority's plans, specifications and designs included therein, the Joint Venture is likewise entitled to summary judgment dismissing the complaint, and its cross-motion is granted.

B. Unlawful Taking/De Facto Taking

The second and third causes of action allege, respectively, a taking of MacArthur's property without just compensation and a de facto taking without just compensation. Plaintiff asserts these claims solely against the MTA based upon the revocation or non-renewal of two commercial tenants' sidewalk café permits on September 10, 2008. The third cause of action also claims a de facto taking based upon the alleged impairment of MacArthur's easements for light, air and access.

As this court previously found in its February 16, 2010 decision granting the City's [*11]motion to dismiss this action (see Semancik Aff. at Exh. E, pp 38-41), neither plaintiff nor any of its lessees has any right to continue or renew the sidewalk café permits as same are revocable at will. The New York City Department of Consumer Affairs Petition for Consent to Use Sidewalk Space confirms this and expressly provides:

I understand that a DCA Sidewalk Café license does not give my business any right, title, or interest in any part of the sidewalk space approved for use . . . I understand that DCA and/or any government agency with jurisdiction may revoke my consent to use public sidewalk space at any time for any reason whatsoever.

(Heller Aff., Exh. 15). Thus, plaintiff lacks any protected property interest in the sidewalk café permits for which it can claim a taking. This court also noted that plaintiff lacked standing to challenge the revocation/non-renewal of these permits granted to its tenants, as well as the fact that the MTA plays no direct role in connection with the City's issuance or revocation of such permits.

The portion of the third cause of action alleging a de facto taking, also known as inverse condemnation, is grounded on allegations of impairment of MacArthur's easements. Such claims are indistinguishable from those in the first cause of action and must be dismissed for the same reasons. Moreover, as stated in Weaver v Town of Rush, 1 AD3d 920, 923 (4th Dept 2003):

A finding of inverse condemnation or de facto taking requires a "showing that the government has intruded onto the . . . property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner." A de facto taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner's physical use, possession, and enjoyment of the property, by one having condemnation powers [internal quotation marks and citations omitted]

(see also Dawson v Higgins, 197 AD2d 127, 133 [1st Dept 1994]). Here, any impairment of plaintiff's easements of light, air and access were not permanent in nature and thus cannot be deemed a de facto taking. For these reasons, the MTA's cross-motion for summary judgment dismissing the second and third causes of action is granted, and MacArthur's motion for partial summary judgment is denied as to these claims.

C. Trespass

The fourth cause of action alleges trespass against all defendants based upon the revocation/non-renewal of the sidewalk café permits and the impairment of plaintiff's easements of light and access. The complaint alleges interference with such easements due to the "erection, maintenance and operation on the street and sidewalk in front of [MacArthur's] Properties of certain structures, equipment, obstructions, fencing and barriers", as well as the Shafts (see Complaint at ¶93); decreased sidewalk width; and obstruction of the Condominiums' windows, signage and entrances.

For the reasons stated above, the fourth cause of action is dismissed insofar as it is predicated on the loss of the sidewalk café permits.[FN7] That part of the fourth cause of action that alleges defendants trespassed on the easements of light and access is also dismissed.

In Ivory v International Bus. Machs. Corp., 116 AD3d 121, 129 (3d Dept), lv denied 23 NY3d 903 (2014), the Third Department stated: "a trespass claim represents an injury to the right of possession . . . and the elements of a trespass cause of action are an intentional entry onto the land of another without permission (citations omitted)." See also, Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61, 66 (2009). Where the plaintiff has no right to possession, a trespass cause of action must be dismissed. Boothe v Williams, 104 AD2d 841 (2d Dept 1984) (trespass action dismissed where plaintiff's tenancy had been terminated as of the date of the alleged trespass); Sky Four Realty Co. v State of New York, 134 Misc 2d 810, 812 (Ct Clms 1987) (out of possession owner cannot maintain action sounding in trespass).

The MTA argues that MacArthur cannot maintain a trespass claim because it has not alleged, nor could it allege, that defendants entered onto its property or caused materials from the construction site to enter its property. Similarly, the Joint Venture contends it has never entered plaintiff's property except with permission for the purpose of installing vibration monitors and crack gauges. It further notes that MacArthur is an out of possession owner and thus lacks standing to seek damages for trespass.

Neither the complaint nor plaintiff's moving and opposition papers alleges any specific entry onto plaintiff's property. As such, MacArthur fails to establish the quintessential element of a trespass claim. Here, defendants only entered onto the sidewalks and streets abutting the Condominiums. Plaintiff fails to rebut defendants' allegations of non-entry onto MacArthur's property, submitting only an attorney's affirmation which vaguely states, without any personal knowledge, that "MacArthur had, and continues to have, a proprietary interest in the subject properties" (Tzanides Reply Aff. at ¶43).

Moreover, plaintiff fails to proffer any admissible evidence that access to the Condominiums was ever completely blocked. Sidewalks were narrowed [FN8] and non-permanent barriers and other structures were erected, but the sidewalks and streets were never closed and the Condominiums were always accessible. That access was less convenient is of no moment and does not constitute a trespass. Notably, plaintiff does not claim that the properties themselves were damaged due to the Project's construction.

Parenthetically, as a lessor, MacArthur may not maintain an action for trespass because it lacks an immediate possessory right to the Condominiums (see Boothe v Williams, supra; Sky Four Realty Co. v State of New York, supra). To the extent that plaintiff may have an immediate right to possession with respect to vacant spaces, it has not provided a sufficient evidentiary basis to assert that claim.

Finally, to the extent the complaint can be construed as basing the trespass claim on noise pollution, vibrations and/or blocked natural light, such intangible intrusions "are treated as nuisances, not trespass [because] they interfere with nearby property owners' use and enjoyment of their land, not with their exclusive possession of it (citations omitted)." Ivory, 116 AD3d at 129-130. Accordingly, MacArthur's motion for summary judgment is denied as to the fourth [*12]cause of action and the defendants' respective cross-motions to dismiss this claim are granted.

D. Private Nuisance

Plaintiff's fifth cause of action, asserted against all defendants and sounding in private nuisance, is based upon allegations that "the fencing, obstructions, construction equipment, excessive noise and air pollution and excavation, drilling and shafts in the Public Street in front of and adjacent to the [Condominiums] have caused substantial injury" to it, specifically preventing the quiet enjoyment of its properties. See Complaint, ¶¶109, 113. The complaint alleges that defendants' foregoing actions interfered with free and safe use of the street and sidewalk abutting the Condominiums as well as free and unhindered access thereto, citing alleged "vibrations, ringing, clanging and other loud and offensive noises, obnoxious and unhealthy odors, dirt, debris and dust" (id. at ¶¶ 110-111).

On this claim, Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 569 (1977), recites the relevant elements:

[O]ne is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (citations omitted).

A private nuisance "is distinguished from trespass which involves the invasion of a person's interest in the exclusive possession of land (citations omitted)" (id. at 570); see also Berenger v 261 West LLC, 93 AD3d 175, 182 (1st Dept 2012).

The MTA contends MacArthur's pleadings and papers wholly lack an assertion or even evidence that the manner in which it oversaw and conducted the Project was unreasonable or unlawful. With respect to the Muck Houses, plaintiff does not deny or refute that these non-permanent structures enclosed the above ground portions of the excavation operations and were implemented for the specific purpose of reducing noise and dust at street level, as well as reducing traffic flow interruptions. See Gianfrancesco Aff. at ¶¶12, 13. The MTA also conducted public outreach meetings regarding the Muck Houses and "met with Plaintiff's representatives in March 2011, who expressed a preference for these enclosures as a means to reduce noise and dust." Id. at ¶14. Defendants provide photographic evidence that they supplied electric lighting for the sidewalk area where the Muck Houses were located and sunlight was able to fall directly on the sidewalks. Id. at ¶¶15, 16; Exh. D.

The Joint Venture sets forth the following arguments in opposition to this nuisance cause of action: its work was not unreasonable; there was no physical damage to plaintiff's property; no negligence is alleged; plaintiff had access at all times; their work was performed pursuant to permit and a municipal contract, thus rendering them immune from liability; the majority of their work was performed between East 91st and East 96th Streets; and MacArthur knowingly "moved to the nuisance" and is precluded from recovering damages. With respect to the Muck Houses, the Joint Venture claims it was not involved in their construction and indeed had left the area of the 72nd Street station construction site before these structures were built.

As with its trespass claim, MacArthur's motion for partial summary judgment as to liability on its nuisance claim also fails. In its reply and opposition to the cross-motions plaintiff annexes for the first time, as exhibit G to the Tzanides reply affirmation, an undated document regarding the Detonation Incident and bearing the caption, "Second Avenue Subway 72nd St. [*13]Station Cavern Mining Contract (C26007) Summary Report of August 21, 2012 Incident at Ancillary No. 2" (the Summary Report). MacArthur represents that this is "the MTA's own commissioned report", which defendants do not contest (id., ¶ 78).

The Summary Report states that on August 21, 2012, a detonation was conducted using a methodology of drilling holes that was not approved and was not consistent with the approved plan, resulting in:

the release of rock, smoke and dust from the shaft into the 72nd Street road surface and the surrounding public area . . . No injuries were reported. The property located at 260 East 72nd Street, to the south of the blast, sustained damage to three windows on the street level commercial property and two windows above street level (one on the second and one on the third floor)

(Tzanides Reply Aff., Exh. G, pp 3-4). The Summary Report refers to defendants Schiavone and Shea's role in managing the operation.

A contractor with a permit to "excavate or build in the public highway, but who does that work or maintains it in a negligent and dangerous manner commits a nuisance" (Hartman v Lowenstein, 90 Misc. 686, 689 [App Term, 1st Dept 1915]). Here, plaintiff attempts to characterize the Detonation Incident as a nuisance based upon defendants' alleged negligence. However, the Summary Report was not submitted with plaintiff's motion and does not meet the evidentiary threshold of admissibility to demonstrate an issue of fact on the nuisance claim. Moreover, it occurred after MacArthur commenced this action and plaintiff has never sought leave to amend its complaint to include any facts surrounding the incident.

Parenthetically, even without the foregoing procedural infirmities, plaintiff's counsel's reply affirmation describing the event is not based upon personal knowledge and wholly fails to allege that the Detonation Incident damaged MacArthur in any way. See McCovey v Williams, 105 AD3d 819, 820 (2d Dept 2013). Indeed, the Summary Report indicates that the only property adversely affected was located at 260 East 72nd Street. For all of the above reasons, MacArthur's motion for partial summary judgment is denied as to the fifth cause of action alleging a private nuisance, and the defendants' cross-motions to dismiss this claim are granted.

E. Injunctive Relief

Finally, though not addressed by the parties, the sixth cause of action seeking injunctive relief directing the removal of all street and sidewalk obstructions and shafts, and stopping all construction on the Project until the ongoing injury to MacArthur is eliminated, is dismissed as moot. The Muck Houses have now been removed, this phase of the Project has been completed and the public, as well as plaintiff, are reaping the benefits of this vital public works project.

MACARTHUR'S MOTION FOR SUBSTITUTION

This court having dismissed the complaint for the reasons stated above, the portion of plaintiff's motion for substitution is denied as moot. Were the court to consider this request for relief, it would have been granted. Although the moving papers only included documentation evidencing the transfer of three of the four properties to MacArthur I, plaintiff's reply papers included the inadvertently omitted deed for 233 East 70th Street. Defendants would not be prejudiced by the inclusion of this documentation in the reply papers.

Further, the Joint Venture's argument that the causes of action herein were not assigned to MacArthur I is unavailing. MacArthur's reply papers include a bill of sale assigning all [*14]personalty and intangibles to MacArthur I. See Tzanides Reply Aff., Exh. D. While the Joint Venture disputes that this is sufficient, case law holds to the contrary. See, e.g., Inter Venture 77 Hudson LLC v Falcon Real Estate Inv. Co., 2016 WL 1464482, 2016 NY Slip Op 30712(U) (Sup Ct, NY County) (Singh, J.) (assignment of assignor's rights, title and interest in inter alia intangibles found sufficient to permit substitution). Accordingly, it is

ORDERED that plaintiff MacArthur Properties LLC's motion for partial summary judgment as to liability and to substitute its alleged successor, MacArthur Properties I, LLC, as plaintiff, is denied in its entirety; and it is further

ORDERED that defendants, the Metropolitan Transportation Authority and MTA Capital Construction Company's cross-motion for summary judgment dismissing the complaint is granted in its entirety; and it is further

ORDERED that defendants, S3 Tunnel Constructors, a joint venture, Skanska USA Civil Northeast, J.F. Shea Construction, Inc. and Schiavone Construction Company's cross-motion for summary judgment dismissing the complaint is granted in its entirety.

The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

The foregoing is this court's decision and order. Copies of this decision and order have been sent to counsel for the parties.

Dated: June 2, 2017

New York, New York

Hon. Martin Shulman, J.S.C. Footnotes

Footnote 1:The complaint identifies the specific properties as 233 East 69th Street, 301 East 69th Street, 305 East 72nd Street and 233 East 70th Street. See Complaint, ¶19 (Exh. C to Contomichalos Aff. in Supp.).

Footnote 2:On February 16, 2010, this court dismissed the complaint herein as against former defendant City of New York (the City), which owns the roadbed of Second Avenue and contracted with the MTA through the New York City Transit Authority (the Transit Authority), for failure to state a cause of action (see transcript dated February 16, 2010, Contomichalos Aff., Exh. B).

Footnote 3:MTA later changed its plans and placed the entryway elsewhere. That settlement reserved MacArthur's right to bring this action.

Footnote 4:The Joint Venture alleges that it only performed work in the vicinity of plaintiff's Condominiums during this time period.

Footnote 5:None of plaintiff's lessees has joined in this action.

Footnote 6:Due to an apparent error in this affidavit's paragraph numbering there are two paragraphs numbered 26. This cite appears at page 10.

Footnote 7:It is further noted that plaintiff fails to allege any facts or point to any evidence that the Joint Venture had any role in the City's determination to terminate the sidewalk café permits.

Footnote 8:Defendants state that New York City regulations require sidewalks to be at least five feet wide, and note that plaintiff concedes the sidewalks in question were actually wider (at least seven feet wide) than the legal requirements. Although the specific sidewalk regulation is not cited, MacArthur does not dispute that defendants are correct in their statement of the applicable law.