New York Eminent Domain - Release: 9-21-2001

New York Property Owners Lose On Legal Technicality,
Appeal May Be Forthcoming

WEB RELEASE: September 21, 2001
CONTACT:
John Kramer
(703) 682-9320
[Private Property]


Washington, D.C.—On September 19, 2001, Judge Harold Baer of the United States District Court for the Southern District of New York dismissed the lawsuit of William Brody and William and Bill Minnich challenging New York’s Eminent Domain Procedure Law (EDPL). The Institute for Justice is considering an appeal and will announce its decision in the coming weeks.

Attorneys from the Institute for Justice, which represent Brody and the Minnichs, were notified late yesterday of the Court’s decision to dismiss the lawsuit entirely on procedural grounds. He dismissed the Minnichs, holding that they did not have standing. The Minnichs had consulted a lawyer (not with the Institute for Justice) before the government designated their property for condemnation, although they had not hired him yet. The Judge concluded that the law assumes clients know everything their lawyers know and that the Minnichs knew everything about eminent domain procedure that the lawyer knew.

Bill Brody’s challenge was rejected on ?res judicata,? a doctrine that holds that a person may not bring a lawsuit if he could have raised the same issues in an earlier proceeding. The Court held that Brody could have raised the unconstitutionality of the EDPL as a defense when the Village of Port Chester began condemnation proceedings against his property.

The Judge concluded by stating ?the rationale for [the Court’s] decision has no bearing on the very serious underlying issue of what constitutes adequate notice under New York State’s condemnation proceedings.?

Institute for Justice Senior Attorney Dana Berliner, who has been representing the plaintiffs, was disappointed by the decision. ?New York’s Eminent Domain Procedure Law violates due process, and if the Judge had reached the merits, we think he would have struck it down.? The Court’s ruling means that someone would have to bring a similar lawsuit before condemnation proceedings began in state court. ?Many, many New York property owners have lost their rights under this unconstitutional statute. The Institute for Justice will simply have to bring this lawsuit again, representing other owners.?

There is now no barrier to the government taking the property of the plaintiffs in this case. The Minnichs stand to lose their 60-year-old family woodworking business. Bill Brody may lose his buildings that he painstakingly renovated and that provide much of the income for himself and his family.


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