![]() ![]() interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require: That section which is entitled "Landlord-tenant relationship" provides:.Thus, for instance, this court has held the owner entitled to compensation where the State takes a roadway that was mapped but never constructed (City of Albany v State of New York, 28 N.Y.2d 352) or where a gas main is placed in land already covered by a public road (Heyert v Orange Rockland Utilities, 17 N.Y.2d 352). This may be true although the invasion is practically trifling from the owner's point of view" (Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv L Rev 1165, 1184-1185 ). The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, `regularly' use, or `permanently' occupy, space or a thing which theretofore was understood to be under private ownership. "The modern significance of physical occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. Yet where an actual appropriation of private property for public use is concerned, the taking of even a minimal amount of property will entitle the owner to compensation. An owner who challenges the regulation of property under the police power "must sustain a heavy burden of proof, demonstrating that under no permissible use would the parcel as a whole be capable of producing a reasonable return or be adaptable to other suitable private use" (Spears v Berle, 48 N.Y.2d 254, 263, supra). By analyzing as an exercise of the State's police power what is in reality a clear example of a taking in the traditional sense of a physical appropriation, the majority has removed an important barrier to uncompensated takings of private property.Thus, if the installation of a cable substantially interferes with the owner's present or future use of the building, we must presume that the Commission would award reasonable compensation for the taking pursuant to its regulations. While the Commission has decided, as a matter of policy, that the compensation due to a landlord who complains of the mere placement of a cable across his rooftop, without more, shall be limited to the nominal sum of $1, it is obvious that a landlord who actually incurs damage to his property or is restricted in the use to which he might put that property will receive compensation commensurate with the greater injury. ![]() The regulations of the Commission then provide that a landlord shall be entitled to the payment of a reasonable fee, pursuant to this section, upon Commission approval of an application for such a fee (9 N.Y.CRR 598.2). Section 828 (subd 1, par b) of the Executive Law provides that a landlord may not accept payment from any cable television company in exchange for permitting cable television service on or within his property in excess of any amount which the State Commission on Cable Television shall, by regulation, determine to be reasonable.She specifically alleged that TelePrompter acted under the purported authority of section 828 of the Executive Law and that its actions constituted a taking without just compensation and a deprivation of property without due process of law. She asked for herself and each member of the class damages for the trespass and an injunction against its continuance. on behalf of a class consisting of all owners of real property in the State of New York on which TelePrompter "has placed any cable television component." As to her own property plaintiff alleged that TelePrompter had placed a CATV cable on the roof of the premises, attaching it by nails and other means, and had dropped a subcable down the front wall of the building to provide service to a first floor tenant. In February, 1976, plaintiff began this class action against TelePrompter Corporation and TelePrompter Manhattan CATV Corp. Plaintiff Loretto purchased the five-story apartment building known as 303 West 105th Street in New York City from Sharie Wald, taking title to the premises on February 28, 1972.
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