design coincidentally manifested at the same point in time as one following years of
neglect that caused ongoing water penetration. Perhaps expert evidence less contested,
qualified, and unambiguous as that adduced herein could persuasively prove such a
proposition, but the evidence on the record herein does not do so.
The record therefore supports the finding that an economic infeasibility defense
would constitute an "unwarranted windfall" for Respondents. See Dep't of Hous.
Pres. & Dev. v. Mill River Realty, 169 AD2d 665, 669 (1st Dept. 1991),
appeal dismissed, 82 NY2d 794, 798 (1993)(any alleged economic hardship the
owner may suffer in making the repairs to the building is self-inflicted in light of its
delay in making the repairs despite repeated notice of the need for such repairs as
evidenced by the outstanding violations issued against the building, court orders issued
over a ten-year period of time, and a visible structural crack). Accordingly, the Court
dismisses Respondents' economic infeasibility defense, the ninth affirmative defense in
Respondents' answer.
Discussion: regulatory takings
The Fifth Amendment of the U.S. Constitution proscribes a taking of private
property for public use without just compensation ("the Takings Clause"), a clause that
applies to the states through the Fourteenth Amendment. Kelo v. New London,
125 S. Ct. 2655, 2658 n. 1 (2005). The Constitution of New York State imposes an
identical restriction. New York State Constitution Article I, §7(a). Respondents
raise a defense that an order of this Court to correct conditions that led to the Vacate
Order would amount to a taking. While Respondents do not allege that an order to
correct would physically take or occupy the subject premises, they assert that an order to