The City of New York ("City") moves pursuant to CPLR §3211(a)(7) to dismiss the plaintiff's complaint on the grounds that it fails to state a cause of action.

In this action, plaintiff Efim Mekler ("Mekler") is the owner of property located at 1733 East 14th Street, Brooklyn, New York. A tenant in the apartment, Ira Oransky ("Oransky") located at the address was not paying his rent and plaintiff on August 26, 2002, brought a non-payment proceeding in Civil Court, City of New York, Housing Part, Kings County against Oransky seeking rent pursuant to a lease in the amount of $2600. When Oransky failed to appear and answer, plaintiff obtained a judgment of possession and a warrant to evict to remove the tenant from the apartment..

Before the plaintiff could execute the warrant of eviction against Oransky, the New York City Department of Social Services (DSS) commenced a proceeding, by order to show cause in Supreme Court, Kings County to appoint a guardian Ad litem for a tenant's friend not named in lease ("Friend") who occupied the same apartment with the tenant Oransky and obtained a temporary restraining order enjoining plaintiff from executing the warrant of eviction received in the Housing Part. (Pursuant to Mental Hygiene Law §81.06(a)(6) DSS may commence a proceeding for appointment of a guardian for personal needs or property management on behalf of an incapacitated person). After a hearing was held on the order to show cause brought by DSS, the stay on the plaintiff's warrant of eviction was continued, pending the appointment of a guardian. An order appointing a guardian for the Friend was signed on February 23, 2004, and the stay of eviction was lifted one hundred and twenty (120) days after the guardian was qualified on May 28, 2004.

Plaintiff alleges that the rent owed by the tenant continued to accrue during the stay of the eviction, that the warrant of eviction was executed against the tenant on May 26, 2005, and that [*2]at the time of the eviction, $51, 800 was owed by the tenant Oransky. Plaintiff further alleges that the DSS "mislead the plaintiff into believing that all the rent monies would be paid on behalf of the tenant and that plaintiff would be made whole."

The City moves to dismiss asserting that the complaint does not state a cause of action for three reasons. First, that there is no statutory or contractual obligation which has been identified for which the City could be liable. Second, that the plaintiff fails to allege any detailed circumstances as to the claims of fraud and misrepresentation in detail pursuant to CPLR §3016(B), and third, that the City properly exercised its authority to commence a proceeding to appoint a guardian for plaintiffs tenant pursuant to Mental Hygiene Law §81.06 (A)(6). The Plaintiff argues that the cause of action is not based on any of the grounds that the City alleges and that the action against the City is maintainable because the claim is based on the actions of the defendant which constitute a taking of property without due process of law.

The Takings Clause of the Fifth Amendment provides that private property shall "not be taken for public use, without just compensation." U.S. Const.Amdt. 5. The Takings Clause does not prohibit or limit government interference with private property but only provides compensation when government interference with private property amounts to a taking without compensation.

The Supreme Court has identified two types of compensable taking, a physical taking by the government and a regulatory taking. (Lingle v Chevron U.S.A. Inc., 544 U.S. 528 [2005]).The United States Supreme Court has set forth three types of regulatory takings. The first is when the government requires an owner to suffer permanent physical invasion of their property by a third person, the second category is where the government regulation completely deprives the owner of all economic beneficial use of their property. (Lingle v Chevron U.S.A. Inc., 544 U.S. 528 [2005]). The third category of regulatory taking applies to situations outside the two categories set forth in Lingle and outlined in Penn Central Transp. Co. V New York City 458 U.S. 104 [1978]. The court in Penn Central Transp., weighs three factors to determine whether the government interference arises to the level of a taking "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action", Buffalo Teachers Fed'n Tobe, 464 F.3d 362, 375 [2d Cir. 2006].

The categories the Court considers applicable in this instance are a regulatory taking by physical invasion referred to in Lingle v Chevron U.S.A. Inc. 544 U.S. 528 [2005], and the third category outlined in Penn Central Transp. Co. v New York City , 458 U.S. 104 [1978].

As to the first category referred to, the regulatory taking requires a physical occupation of the plaintiff's property by the government or a third-party authorized by the government. (Lorretto v Teleprompter Manhattan Catc. Corp., 458 U.S. 419, 440 [1992].) Here there has been no direct physical invasion of the plaintiff's property by the government for its own use.

The Supreme Court has ruled that the States have broad power to regulate housing conditions in general, and landlord-tenant relationships in particular, without paying compensation for all economic injuries. ( Pennell v San Jose, 485 U.S. 1, [1988].) The Court in Pennell, states that "statues regulating the economic relations of landlords and tenants are not per se takings."

The plaintiff cites Seawell Association v City of New York, 74 NY2d 92 [1989], arguing [*3]that the Court of Appeals found a compensable taking by the government where "...the constitutional guarantee against uncompensated takings is violated when the adjustment burdens of rights for the public good becomes so disproportionate that it can be said that the governmental action is forcing some people alone to bear public burdens which in all fairness and justice, should be born by the public as a whole." However, in Seawell, the Court of Appeals distinguished the case from previous cases that did not find a taking in the landlord-tenant context because the plaintiffs in Seawell were forced to put their property to a use that was not intended for the property. The plaintiff here has not been forced to use the property in a way that was not contemplated when the eviction proceeding was stayed.

The Court next looks to the third type of regulatory taking outlined in Penn Central Transp. Co. v New York City , 458 U.S. 104 [1978]. As stated above, the court in Penn Central outlined three factors to determine whether the interference with the property rises to the level of a taking: "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action" ( Buffalo Teachers Fed'n Tobe, 464 F.3d 362, 375 [2d Cir. 2006].) Looking at the first two factors outlined in Penn Central, an Article 81 proceeding which temporarily prevented plaintiff from evicting his tenant is a mere deprivation of a right to use and obtain a profit from property which is not sufficient to establish a taking.( Lorretto v Teleprompter Manhattan Catc. Corp., 458 U.S. 419, 440 [1992]). Here the plaintiff s eviction proceeding was temporarily stayed and the Court notes that the plaintiff has not asserted in the motion papers or at oral argument that there was any action instituted by plaintiff against the tenant Oransky for the rent that was owed. Therefore, the Court cannot determine the economic impact on the plaintiff, if any.

Lastly, looking at the third factor set forth in Penn Central , which addresses the character of the government action, the Court finds that there is a strong public interest in not evicting an incapacitated person. The purpose of the Mental Hygiene Law article 81 is to provide guardians for persons likely to suffer harm because they are unable to function in society. The court in Seawell Association v City of New York, 74 NY2d 92, 112 [1989] , stated that "the government has considerable latitude in regulating landlord-tenant relationships to preclude eviction in hardship, emergency and rent-control cases, and both this court and the Supreme Court have upheld such efforts".

The plaintiff further alleges that the City's actions amounted to an "unconstitutional taking without due process." However, plaintiff does not assert which constitutional amendment his rights were violated under. As to a Fifth Amendment claim, the court here will not consider that as an appropriate assertion as the Firth Amendment, applies to allegations of "federal action" in violation of due process and no federal actions are indicated by the plaintiff. (Taylor v Evans, 72 F.Sup2d 298, 305n.3 [S.D.NY 1999]).

To state a cause of action under the Fourteenth Amendment, plaintiff would have to show that his due process rights were violated by a lack of notice of the pendency of the stay of eviction proceeding thereby depriving the plaintiff of his right to have presented an objection to the stay. (Mullane v Central Hanover Bank Trust Co., 339 U.S. 306, 314 [1950]). Here there is no indication that plaintiff did not receive proper notice of the City's actions in bringing the guardianship proceeding and seeking a stay. On the contrary, it is indicated that plaintiff was [*4]served with the City's order to show cause with a temporary restraining order and subsequent notice of entry and plaintiff had the ability to challenge those actions.

Accordingly, the Court grants the defendant's motion to dismiss the complaint. The Clerk of the Court is directed to dismiss the complaint with prejudice.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

August 4, 2008