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The Criscuola Decision – The Sparks Are Still Flying

When New York State’s highest court, the Court of Appeals, handed down Criscuola v. Power Authority of the State of New York, many hailed the decision as the missing piece of the puzzle which would provide the means to obtain monetary damages due to diminu-tion of property values caused by being in close proximity to an electromagnetic radiation field (EMF).

Criscuola became the subject of numerous articles and seminars. In their excellent column on Environmental Law, Stephen L. Kass and Michael B. Gerrard wrote an article in the New York Law Journal entitled “Emotional Distress and Property Values After Criscuola.” NYLJ, October 22, 1993, p. 3, col. 1, and ventured that Criscuola would be applicable in cases involving contaminated property, toxic torts, superfund cases, tax assessments, zoning cases and SEQRA matters.

On March 14, 1994, at p. S1, col. 1, the New York Law Journal featured an article by Eric Bregman and Andrew J. Gershon, two renowned environmental law practitioners, “Utilities Shocked by Suits Charging Property Damage.” Bregman and Gershon opined, “Criscuola thus provides an important precedent for those who would seek compensation for the impact of electromagnetic fields on their properties, whether in the context of an eminent domain proceeding or through inverse condemnation.”

Criscuola was a well reported decision. And, although hailed as a landmark decision by the New York Times, the Wall Street Journal and other national and international publications, as will be discussed later, the decisions which followed Criscuola indicate a reluctance to follow the Court of Appeals’ clear message.

Three years later, one observes the aggressive use of the holding in many different types of lawsuits as predicted. Certainly it is being used in eminent domain cases. The Criscuola doctrine is also being utilized in inverse condemnation cases and in a host of other situations diverse as the fertile imagination of learned counsel would allow.

Judge Bellacosa wrote in Criscuola that “Evidence of fear in the marketplace is admissible with respect to the value of property taken without proof of the reasonableness of the fear2.”

In the key holding the New York Court of Appeals ruled:
1. There should be no requirement that the claimant must establish the reasonableness of a fear or perception of danger or of health risks from exposure to high voltage power lines, and

2. Whether the danger is a scientifically genuine or verifiable fact should be irrelevant to the central issue of its market value impact.
A claimant, however, is not relieved from giving any proof to establish his claim and just compensation damages. Criscuola v. P.A.S.N.Y., mandates that a claimant must still establish some prevalent perception of a danger emanating from the objectionable condition.
Quoting the Ryan decision once again, the Court of Appeals stated, “No witness, whether expert or non-expert, may use his or her personal fear as a basis for testifying about fear in the marketplace. However, any other evidence that fear exists in the public about the dangers of high voltage lines is admissible.” (emphasis supplied)

Judge Bellacosa stated:
“Claimants should have to connect the market value diminution of the property to the particular fear in much the same manner that any other adverse market effects are shown, e.g., by proffering evidence that the market value of property across which power lines have been built has been negatively affected in relation to comparable properties across which no power lines have been built (see generally, 4 Nichols, Eminent Domain Sec. 12.02) [Sackman 3d, ed. 1994]3.”

There have been two recent New York Appellate Court decisions which should be reviewed since they were decided after the Court of Appeals decided Criscuola, Jonas v. Power Authority of the State of New York4 and DeMarco v. Power Authority of the State of New York5.

Both decisions arose from the same Marcy South transmission line takings which took part of the Criscuola brothers’ property. Indeed, it was the same Second Department of the Appellate Division which previously affirmed Zappavigna v. State of New York6 holding that scientific proof was necessary to establish “cancerphobia” consequential damages. This holding was, of course, reversed in Criscuola.

In Jonas, the Appellate Division held, “We find that the Court of Claims properly declined to award the claimants consequential damages for, among other things ‘negative view’ ‘cancerphobia’ and ‘noise pollution.’ The claimants failed to demonstrate that [the market value of property adjacent to or near land upon which power lines have been built] was diminished by such factors in relation to comparable properties which are not adjacent to or near power lines.” (see, Criscuola v. Power Auth. of State of N.Y., 81 NY2d 649, 654; Niagara Mohawk Power Corp. v. Olin, 138 AD2d 940, 941; Matter of Niagara Mohawk Power Corp., 118 AD2d 891, 893).

“The claimants contend that the trial court erred in precluding them from offering evidence relating to the reasonableness of the public fear of health risks from exposure to high-voltage power lines. However, in light of the decision in Criscuola v. Power Auth. of State of N.Y. (supra), that it is not necessary to prove the reasonableness of the public fear in order to establish a diminish-ment in market value, the preclusion of such evidence was not error.”

The second quoted paragraph does not seem to be logical. Claimants were precluded from introducing evidence relating to the reasonableness of the public fear of health risks from EMF. The appeal focused on the trial court’s denial of any consequential damages for “cancerphobia.” Thus, to state that it wasn’t necessary anyway in view of Criscuola, begs the question. It would have been far preferable to remand for additional testimony in view of the Court of Appeals decision.

In the DeMarco decision, the Appellate Court, likewise, held that, based on the record, the trial court properly declined to award consequential damages for negative views or visual pollution. Citing, inter alia, Criscuola v. Power Auth. of State of New York.

Another decision of interest is Filipowski v. State of New York7. Filipowski was one of the last Marcy-South partial appropriations. In a well written decision, Court of Claims Judge Jerome F. Hanifin, wrote, at page 59:

“Because the Court has concluded in this Claim that the proof presented does not support Claimant’s position that there is an adverse effect of the subject appropriation outside of the physical taking lines, the Court has not examined the Zappavigna record. Perhaps that was the only course of action available in view of the Court of Appeals’ expressed views with regard to testimony by “electromagnetic power engineers, scientists or medical experts” (Criscuola, p. 652) Whether that is the case or not, this Court, in arriving at its findings, acted on the assumption that there was indeed an electromagnetic field that permeated space beyond the permanent taking lines on the subject property. Whether this electromagnetic field created a fear, reasonable or unreasonable, may or may not be the case. What the electromagnetic field did not generate, based on the proof presented to the Court, was a fear that in turn caused a reduction in market value of the subject remainder outside of the permanent easement taking lines.”

In an inverse condemnation setting, seeking damages because of a loss in value of a residence located near a pre-existing high voltage power line, summary judgment was granted, dismissing the complaint against a utility in Westchester Supreme Court. In Borekind v. Consolidated Edison Corp.8, the Court stated:
“The ‘taking’ or disseisin claim of plaintiff, in the sense that some of the value of the appreciation of their property was taken by defendant or loss to them by virtue of the power lines pre-existing their own taking of title does not bear analysis. While it is true that in Criscuola v. Power Authority of the State of NY, 81 N.Y.2d 649, 602 N.Y.S.2d 588, 621 N.E.2d 1195 (1993), the Court of Appeals, in formulating the condemnation award to the plaintiff, did allow for depreciation of the plaintiff’s remaining property for this perception reason when a portion of the property was being condemned as a right-of-way for new power lines and that the plaintiff needn’t be required to provide the reasonableness of the public fear, such is not the case here since there is no new, or for that matter of, taking or disseisin from these plaintiffs themselves.”

The dismissal in Borekind led the same Westchester County Supreme Court Justice to grant summary judgment in Reiss v. Consolidated Edison9 which similarly alleged inverse condemnation damages because of the close proximity of the power lines to their residence. The Reiss’ were mentioned in an article written by the Wall Street Journal “Power Lines Short-Circuit Sales, Homeowners Claim” which discussed EMF property devaluation on a national basis10.

In 1994, the Village of Tarrytown in Westchester County passed a local law creating a moratorium on installation of cellular telephone antennas. On appeal following the denial of a preliminary injunction, the Appellate Division, Second Department reversed, holding that the moratorium was not a valid exercise of the Village’s police or zoning powers and was, therefore, invalid. The Village cited Criscuola to support their claim that the perception of health risks need not be reasonable or scientifically based in order to justify the local law. The Court held that this contention was without merit. “The Criscuola decision has no bearing on the issue of whether a municipality may enact legislation restricting property rights based solely upon the public’s unreasonable fear of health risks, an issue which, on the present record, must be resolved in favor of the plaintiff11.”

On the other hand, in New Jersey, the Appellate Division of the Superior Court gave Criscuola greater consideration in effort to stop the Borough of Spring Lake Heights from leasing municipal property for use as a cellular facility including transmission antenna, holding in Sellitto v. Borough of Spring Lake Heights12,

“On the other hand, plaintiff has brought to our attention Criscuola v. Power Authority of the State of New York, 81 N.Y.2d 649, 602 N.Y.S.2d 588, 621 N.E.2d 1195 (Ct. App. 1993), which he claims supports the proposition that the Mayor and Council should have considered the public’s perception that a transmitting facility, such as that proposed, may be dangerous, and should therefore have considered the effect such perception would have on local property values, even though plaintiff is unable to present proof that a danger actually exists.

We reverse that part of the order of May 24, 1994, which held that the subject lease was not subject to public bidding and remand for the trial court to restrain the borough from enforcing its lease with Bell Atlantic.”

As predicted by Kass and Gerrard, Criscuola was relied on in a toxic tort case brought against an installer of foam insulation. In Cottonaro v. Southtowns Industries, Inc.13, the Appellate Division, Fourth Department, stated:

“…Damages from the diminished market value of real property as a result of public fear of exposure to a potential health hazard constitute consequential damages (see, Criscuola v. Power Auth. of State of N.Y., 81 N.Y.2d 649, 602 N.Y.S.2d 588, 621 N.E.2d 1195). The relevant claim accrual date for Statute of Limitations’ purposes “does not change merely because continuing consequential damages are alleged” (Quinn v. County of Nassau, 162 A.D.2d 514, 556 N.Y.S.2d 712).

The cases involving pure eminent domain claims for power lines, which were decided thus far after Criscuola, did not have the proper appraisals which, consistent with the Court of Appeals, contained evidence of some prevalent perception of a danger emanating from the high voltage lines. If the requisite proof is supplied, consequential damages must be awarded. Inverse condemnation claims may be more difficult in concept to understand but they are well established under New York Law. Eventually, Criscuola will be the basis for inverse property devaluation claims. One thing is certain, the practitioner must be alert to the continuing metamorphis of the law. Further clarification may be required by the Court of Appeals setting forth the perimeters of Criscuola’s application to other claims.

1. Criscuola v. Power Authority of the State of New York, 81 NY2d 649, 602 NYS2d 588, 621 NE2d 1195 (1993).
2. Quoting Ryan v. Kansas Power and Light Co., 249 Kan 1,7,815 p.2d 528, 533.
3. Criscuola v. P.A.S.N.Y., 81 NY2d 649, 654, 602 NYS2d 588, 590 (1993).
4. 210 AD2d 453, 620 NYS2d 991 (2nd Dept. 1994).
5. 211 AD2d 612, 621 NYS2d 883 (2nd Dept. 1995).
6. 186 AD2d 557, 588 NYS2d 585.
7. Claim No. 74005, filed February 28, 1995.
8. 164 Misc2d 808, 626 NYS2d 414 (Sup. Ct. West. Co., 1995).
9. (Index No. 10243/94, Decision and Order 6/14/95) Appeal Perfected to Second Department.
10. Wall Street Journal, Dec. 8, 1993, p. B1.
11. Cellular Telephone Company v. Village of Tarrytown, 209 AD2d 57, 624 NYS2d 170 (2nd Dept., 1995).
12. 284 N.J. Super 277, 664 AD2d 1284 (1995).
13. 213 AD2d 993 (4th Dept. 1995).

Reprinted with permission from the April 24, 1996 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.