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May 20, 2009
A Teaching Moment From a Times Correction on NY State Eminent Domain Legal Procedures
Develop Don't Destroy Brooklyn
The following correction in the New York Times is important to note. It is not surprising that a reporter or anyone else would assume that an Appellate Division ruling would be a ruling on an appeal of a lower court decision.
What IS surprising, and shocking, is that New York State law, specifically the Eminent Domain Procedure Law (EDPL), requires property owners to initiate their challenge to one of the state's greatest powers—seizing a person's private property, home or business—not in the state's lowest court but, rather, in the appeals court. We are not aware of any other legal challenge in the state that is required to skip a court level.
And not only do private property owners have no right to state their case in each level of the state courts, but when they do present their case to the Appellate Division, there is no legal right to discovery or depositions, no introduction of evidence outside of the record created and controlled by the condemning agency, and no testimony, examination or cross-examination.
So while the Times mistake is understandable, and we are glad it has been corrected, the attenuated right to protect one's property in New York State is no mistake and the legislature is less than reticent to correct it.
From the Times:
Corrections
An article in some editions on Saturday about a state appeals court’s dismissal of a lawsuit challenging the use of eminent domain to seize property for the Atlantic Yards development project in Brooklyn referred incorrectly to the decision. As an eminent domain case, it was heard first in the Appellate Division of State Supreme Court, so there was no lower-court ruling.
Posted by eric at May 20, 2009 3:25 PM