Jo & Wo Realty Corp. v. City of New York

157 A.D.2d 205, 555 N.Y.S.2d 271, 1990 N.Y. App. Div. LEXIS 5093
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 8, 1990
StatusPublished
Cited by8 cases

This text of 157 A.D.2d 205 (Jo & Wo Realty Corp. v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jo & Wo Realty Corp. v. City of New York, 157 A.D.2d 205, 555 N.Y.S.2d 271, 1990 N.Y. App. Div. LEXIS 5093 (N.Y. Ct. App. 1990).

Opinions

OPINION OF THE COURT

Sullivan, J.

This appeal presents the question of whether the municipal defendants, the City of New York and its Mayor, are prohibited from selling the site of the obsolete New York Coliseum without competitive bidding. At issue is a plan, seemingly consistent with both the current economic needs of the city and State and the historical origins of the site area, to redevelop the Coliseum site.

The City of New York originally acquired the Coliseum site in 1952 pursuant to the Columbus Circle Redevelopment Plan (Redevelopment Plan) drafted by the Committee on Slum Clearance Plans. When the Redevelopment Plan was formally adopted by the city’s Board of Estimate on December 18, 1952, the site area, consisting of two city blocks on the west side of Columbus Circle between Broadway and Ninth Avenue from 58th to 60th Streets, was, on the basis of express findings made in accordance with the urban renewal law then in effect (General Municipal Law former § 72-k), found to be "substandard and insanitary”. Despite numerous challenges to the city’s findings, the designation of the site area as "substandard and insanitary” within the meaning of the urban renewal law was expressly upheld by the Court of Appeals. (Kaskel v Impellitteri, 306 NY 73, cert denied 347 US 934.)

Even before the Coliseum site was condemned, the Tribor[210]*210ough Bridge and Tunnel Authority (TBTA) contracted with the city to purchase it for $2,182,230 on acquisition, and to develop it in accordance with the Redevelopment Plan. On January 15, 1953, pursuant to Public Authorities Law § 557-a (3), the Board of Estimate approved the sale, by the terms of which (TBTA Agreement) the city conveyed to the TBTA the use and occupancy of the tract for as long as the TBTA’s corporate existence continues. After the conveyance, the TBTA constructed the Coliseum on the site, and has been its sole operator ever since.

Today, however, the Coliseum has lost its business to the new Javits Convention Center and stands vacant and virtually unused. In 1984, the TBTA and the city, having jointly determined that the Coliseum is obsolete and the site no longer necessary for their respective purposes, decided to sell the property for redevelopment. In 1985, they selected Boston Properties as the developer from among numerous applicants responding to a request for proposal (RFP). The TBTA, on behalf of itself and the city, thereafter entered into a purchase and sale agreement to sell the property to Boston Properties for $455,100,000. Although the latter offered the second highest bid, its redevelopment plan, in the judgment of the Board of Estimate and the TBTA, promised the highest economic benefit for the city overall and best advanced the goals of urban renewal. That determination, apart from the narrow question of competitive bidding, was not challenged and it is not at issue on this appeal.

The present ownership of the Coliseum site is defined not only by the public record but by statutory provision as well. The original total gross project cost of approximately $12,600,000 for the entire parcel, of which the Coliseum site is but a part, was financed by a Federal grant of approximately $6,000,000, local grants-in-aid of approximately $3,000,000, a capital value of approximately $192,000 allocated to land retained by the city and the proceeds, $3,421,222, of sales of project land by the city. The latter figure included the $2,182,230 which the TBTA paid the city for that portion of the project that became the Coliseum site. When, as here, the TBTA acquires at its expense real property from or in the name of the city, it obtains the use and occupancy of that property for "so long as its corporate existence shall continue”. (Public Authorities Law § 553 [4]; § 557-a [2].) Moreover, in the two deeds which transferred the site, the TBTA was granted "the use and occupancy” of the Coliseum site "for so [211]*211long as the [TBTA’s] corporate existence * * * shall continue.” Thus, the property would revert to the city by operation of law only if the TBTA ceases to exist. (Public Authority Law § 552 [2].) Furthermore, when and if the TBTA determines that its interest in the property is no longer necessary for its corporate purposes, as has occurred here, the statute authorizes it to sell the property. (Public Authorities Law § 553 [4-a] [b].)

The Redevelopment Plan’s urban renewal program for Columbus Circle was designed to remain in effect for 40 years after construction of the Coliseum. The Redevelopment Plan, as adopted by the Board of Estimate in 1952, itself provides, "No increase in density or change in land use shall be made for a period of 40 years except upon the approval of the Board of Estimate of The City of New York.” In section 506 of the TBTA Agreement, and again in both deeds conveying the Coliseum site, the TBTA expressly covenanted "[t]o devote the land to the uses specified in the redevlopment plan * * * as said plan may exist from time to time for a period of forty (40) years from the completion of the project” (emphasis added).

It should be noted that both the TBTA Agreement and the deeds draw a clear and significant distinction between the Redevelopment Plan and the project. In contrast to the 40-year plan, the "project” referred to is the construction of the Coliseum building itself which, according to section 304 of the TBTA Agreement,

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Bluebook (online)
157 A.D.2d 205, 555 N.Y.S.2d 271, 1990 N.Y. App. Div. LEXIS 5093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jo-wo-realty-corp-v-city-of-new-york-nyappdiv-1990.