| 1766-68 Assoc., LP v City of New York |
| 2012 NY Slip Op 00296 [91 AD3d 519] |
| Jnury 19, 2012 |
| Appellate Division, First Department |
| 1766-68 Associates, LP, Appellant, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I Freedman of counsel), forCity of New York, respondent. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon ofcounsel), for Metropolitan Transit Authority, New York City Transit Authority, MTA CapitalConstruction and S/3 Tunnel Constructors, respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 30,2010, which granted defendant City of New York's motion to dismiss the complaint as against it,unanimously affirmed, without costs.
The motion court properly dismissed the cause of action alleging that the City failed toenforce Building Code provisions relating to construction, excavation, and blasting by notordering the Metropolitan Transit Authority (MTA) defendants to perform the work required tostabilize or otherwise protect plaintiff's building. No liability lies against the City for itsdiscretionary decisions relating to issuing orders, directives, permits, or the like even where thecode allows it to do so (see City of New York v 17 Vista Assoc., 84 NY2d 299, 307[1994]; Matter of Church of Chosen vCity of Elmira, 18 AD3d 978, 979 [2005], lv denied 5 NY3d 709 [2005],cert denied sub nom. Stephenson v City of Elmira, 547 US 1115 [2006]).
The cause of action alleging a violation of the Takings Clause (US Const 5th Amend; NYConst, art I, § 7), was also properly dismissed. Plaintiff does not allege that the City'sissuance of the emergency declaration and vacate order forever deprived plaintiff of all of thebuilding's economic use (see Kaufman v City of New York, 717 F Supp 84, 95 [SD NY1989], affd 891 F2d 446 [1989], cert denied 495 US 957 [1990]). More critically,the motion court correctly held that no compensation was due under the Takings Clause, ascompensation is not required where the government acts to "prevent an impending dangeremanating directly from the use or condition of the property" (Birnbaum v State of NewYork, 73 NY2d 638, 646 [1989], cert denied 494 US 1078 [1990]; see alsoRochester Poster Adv. Co. v City of Rochester, 38 AD2d 679 [1971]).
Insofar as the complaint alleges that the City conspired with the MTA to deprive plaintiff ofits property rights, such claim fails to state a cause of action since civil conspiracy has not [*2]been properly pleaded. The complaint fails to allege a cognizabletort, coupled with an agreement between the conspirators regarding the tort, and an overt actionin furtherance of the agreement (seeAbacus Fed. Sav. Bank v Lim, 75 AD3d 472, 474 [2010]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Andrias J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ. [Prior CaseHistory: 2010 NY Slip Op 32930(U).]