correct would amount to a regulatory taking. A regulatory taking is an unfair imposition
of a burden on a property owner that the public as a whole should bear, denying an
owner an economically viable use of a property by making it impossible or commercially
[*19]impracticable for it to profitably engage in business
or to fail to substantially advance a legitimate state interest. Cycle Stone, Inc. v.
N.Y.C. Dept. of Consumer Affairs, 2019 NY Slip Op. 31537(U), ¶ 6 (S. Ct.
NY Co.). A regulatory taking defense occasions an "essentially ad hoc, factual inquir[y]
" Buffalo Teachers Fed'n v. Tobe, 464 F.3d 362, 375 (2nd Cir. 2006),
Dawson v. Higgins, 197 AD2d 127, 137 (1st Dept. 1994).
A regulatory taking challenge normally applies to a statute or regulation, rather than
a Court's application of a statute or regulation to a particular litigant. Save Pine Bush
v. Common Council, 188 AD2d 969, 971-72 (3rd Dept. 1992).[FN6]
The distinction is significant because Respondents do not challenge statutes imposing
non-waivable [FN7]
duties upon them to maintain their residential properties so as to be safe, healthy, and
habitable. See, e.g., RPL §235-b, MDL §78, and N.Y.C.
Admin. Code §27-2005. Respondents' forbearance in this regard accords with a
government's power to regulate harmful uses of property without compensation,
Lucas v. S.C. Coastal Council, 112 S. Ct. 2886, 2897 (1992), so as to promote
health, safety, and the general welfare. Penn Cent. Transp. Co. v. New York
City, 98 S. Ct. 2646, 2659 (1978).
A regulatory takings claim can involve an analysis of, inter alia, the effect of
a government action on distinct investment-backed expectations. Sherman v. Town
of Chester, 752 F.3d 554, 565 (2nd Cir. 2014), Buffalo Teachers Fed'n,