This is an application pursuant to the Eminent Domain Procedure Law ("EDPL") §402(B) for leave to file acquisition maps and for the condemnation of property interests relating to Contract 1, Phase 1 of the Second Avenue Subway. The properties and interests affected are detailed in the acquisition maps attached to the Petition as exhibits A and B, and geographically cover an area extending from East 96th Street along Second Avenue to 63rd Street. Eventually the project will result in a new two track subway line running from 125th Street in the North to Hanover Square in the South.

Opposition to the Petition has be filed by two condemnees, MacArthur Properties, the landlord of a number of commercial properties located in the affected area and the Huntington Condo Association, a luxury residential hotel known as the Marmara, located on East 96th Street.

The objections of MacArthur Properties, to the extent that they are relevant to the instant inquiry, is that the Petition is defective because it fails to notice the City of New York as a necessary party. MacArthur claims that the City of New York is necessary because, as part of the process, the City terminated or [*2]has threatened to terminate café permits of four businesses who are tenants of MacArthur Properties.

Huntington Condo Association Inc's objections appear to be that the notices, and the hearings held, were inadequate vitiating the determinations and findings of the Board and that the absence of a formal court hearing constitutes a denial of their constitutional rights to a fair hearing.

The role of a trial court on an application pursuant to EDPL § 402(B) is limited and circumscribed, and the trial court is required to grant the Petition if all the procedural requirements have been met. (City of Buffalo Urban Renewal Agency v. Moreton, 100 AD2d 20 [4th Dept 1984]).

As the Court explained in Matter of City of Syracuse Industrial Development, 5 AD3d 1114 [4th Dept 2004] leave to appeal dismissed, 3 NY3d 656:

EDPL 402(B)(5) provides that, upon the return date of the petition, "upon...proof to its satisfaction that the procedural requirements of this law have been met, the court shall direct the immediate filing and entry of the order granting the petition...Upon the filing of the order and acquisition map, the acquisition of the property in such map shall be complete and title to such property shall then be vested in the condemnor" (emphasis added). Thus, it has been stated that "[t]he power of the condemnation court to entertain claims raised by the pleadings in a condemnation proceeding is limited to matters of procedural compliance not within the scope of review by the Appellate Division of the Supreme Court (EDPL 207, 402[B][5])" (Matter of UAH-Braedly Hydro Assoc. V. RKDK Assoc., 138 AD2d 493, 493, 526 NYS2d 122). "On the return of an application for permission to file an acquisition map and for an order to acquire *1116 the property..., the court must grant the petition if it finds that all of the procedural requirements of the statute have been met" (City of Buffalo Urban Renewal Agency v. Moreton, 100 AD2d 20, 22, 473 NYS2d 278; see Matter of the County of Duchess v. Kendall, 130 AD2d 491, 492, 514 NYS2d 1012). "Once the property has been acquired, any claims arising from that acquisition, such as the determination of just compensation, would be decided in a valuation trial pursuant to article 5 (EDPL 501)" (Matter of the City of New York [Jamaica Water Supply Co.], 158 Misc 2d 378, 391, 600 NYS2d 914).

With respect to, and setting aside the question of whether or not the City's termination of MacArthur's tenants' sidewalk café licenses is compensable, the fact of the matter is that any inquiry regarding compensation or valuation is not an appropriate inquiry in the instant proceeding. The City has appeared on the hearing of this matter and has taken the position that it is not a necessary party. This court concludes that if in fact there [*3]has been a taking by the City, that is a matter for a separate proceeding involving the interested parties.

The Huntington objections are two fold. First, they seek to impose upon the condemnor certain conditions regarding the plans and manner of construction, liability for collateral damage and the like. As such these matters are beyond the scope of this proceeding. (See Matter of City of Syracuse Industrial Development, supra ).

With respect to the issue of "fair hearing," on June 14, 2006, the MTA, upon public notice duly given, conducted a public hearing as required under Article 2 of the Eminent Domain Procedure Law (EDPL) to address the proposed property acquisitions and terminations for Contract 1. The hearing also served to inform the public of the Project, review the public uses to be served, and to review the potential impacts on the environment and residents of the locality where the first phase of the construction is to be completed.^[FN1] Further, at the public hearing, the public was informed about the availability of additional information about the Project on the MTA's website. The hearing remained open subsequent thereto for the receipt of public comments. (Petition para. 10).

On September 27, 2006, in accordance with EDPL §204, the MTA through its duly assembled Board, made Determination and Findings approving the proposed property acquisitions and terminations for Contract 1, a synopsis of which was then duly published in two successive issues of the New York Post on September 29, and 30, 2006, as required under the EDPL. (Petition para. 11).

Moreover, the record is clear that Huntington participated in the process and that their challenge is, in essence, to the condemnor's Determination and Findings. However, the exclusive method to challenge those findings is to commence a proceeding under EDPL §207. EDPL §207 provides, inter alia, that an aggrieved party must file a petition in the Appellate Division within thirty days of the publication of the synopsis. Inasmuch as the synopsis was published on September 30, 2006, the time within which to commence an action pursuant to EDPL §207 was October 30, 2006. Huntington's objections therefore, are both untimely and in the wrong court.

Having reviewed the verified petition and the notices of hearing, the court is of the opinion that there has been a full and fair opportunity to be heard and that there was adequate notice of the proceeding.

Accordingly the Petition is granted and the within order signed. [*4]

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C.