Keystone Associates v. State New York

Breitel, J. (dissenting). I dissent and vote to reverse and dismiss the claim for the reasons stated in the dissenting opinion at the Appellate Division. Moreover, the analysis by the majority at the Appellate Division and in this court is based on a verbal non sequitur. The statute held unconstitutional in Matter of Keystone Assoc. v. Moerdler (19 N.Y.2d 78) was struck down not because it effected an appropriation but because, if given effect, it would have accomplished an appropriation without full compensation to the owners as required by the Federal and State Constitutions. Hence, the statute struck down accomplished nothing just because it was void. To provide compensation in this action as damages in "quasi-tort" for the aborted "appropriation" would now in effect supply, judicially it is true, the very defect which made the statute void. If that were legally possible the statute should never have been struck down in the first instance.