Apartheid Style: Queens Land Seizure

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Next door neighbor Michael Hussey, encroached Gounden’s land, waiving a bat, and calling the Goundens and his relatives “niggers”, among other things, he said

[The Legal Beat]

A Brooklyn federal judge has illegally ignored New York State’s Eminent Domain Procedure Law and the 5th and 14th Amendments to gift away Kris Gounden’s land so his neighbors, who are White, can use his property as a driveway.

In 2006 Gounden bought adjoining lots at 152 Broadway and 1 Bayview avenue in Howard Beach, Queens, New York. This is the same neighborhood where Glen Moore was beaten with a bat by hate crimes convict Nicholas Santucci on June 29, 2005. It's also where Michael Griffith lost his life to a vicious mob, 10 White men deep, on December 20, 1986. Only three of the men were charged.

It's also the same basic neighborhood, Broad Channel, where fire and police officers dragged, as a joke, the body, in effigy, of James Byrd Jr., a man of African descent who was tied to the back of a pick-up truck and brutally dragged to his death in Jasper, Texas on June 7, 1998.

On the very day of birth of Gounden’s daughter, August 11, 2007, next door neighbor Michael Hussey, encroached Gounden’s land, waiving a bat, and calling the Goundens and his relatives “niggers”, among other things, he said. Before Gounden bought his property in Howard Beach, both the previous owner, Mr. Fox, and Gounden informed neighbors that the property would be completely fenced off and that they would no longer be able to use the property as a driveway. The former owner agreed to fence the entire property off and informed neighbors did not protest the plan.

In 2006, when Gounden attempted to fence off his property, then councilman Joseph Addabbo arrived and told Gounden he did not own the part of the property used as a driveway, in spite of the fact that no city map reflected an easement on the property. An easement is a legal right for someone other than the landowner to use the landowner’s land for a limited and specified purpose. Easements are recorded in titles, on official city maps, and in court processes. None of which happened.

After heated verbal confrontations between the Goundens and City officials, in 2006 Queens Borough President Helen Marshal, through her counsel Mark McMillan, told Mr. Gounden he would receive money for the use of his land, if he didn’t file a lawsuit. Gounden surreptitiously taped the meeting.

Four years later after realizing the Borough President had defrauded Gounden with no intent to pay for the seizure of the land, he put a boulder on his property to stop his property from being used as a driveway.

Police officers Wilde and McManus, from the 106th  precinct, seized the boulder with a chain and police emergency vehicle and discarded the boulder 50 yards from the property, claiming the word “access” as the authority with which to have seized the boulder. No ticket for blocking a public road was issued. Not 40 yards north of the Gounden home, there is a row of houses where fire engines also cannot pass. Police have not seized any land from these row-house owners, who are White.

Gounden filed suit for, among other things, taking of his land without just compensation and seizing his boulder. Suddenly, the City popped up with what is called a “Dedication” allegedly from 1996. This “Dedication” was a statement allegedly issued by the Law Department of the City of New York saying the land was “dedicated” to the City. This “Dedication” was never recorded in any legal manner, there was no court process transferring ownership or decreeing an easement, no previous announcement in any official city map, and no law authorizing a “Dedication”
as a way of stripping an owner of his land.

This secret “Dedication” was based on State Highway Law section 189, which requires the City to maintain a property for 10 years before the City can claim the land. Michael DiVierno, the current director of the Department of Transportation, signed an affidavit, under penalty of perjury in 1996, stating that he personally witnessed the City maintaining the property for 10 years.

Under questioning by attorney Michael Lumer in a preliminary injunction hearing, DiVierno admitted that he had never had personal knowledge of key portions of his affidavit. This means Mr. DiVierno perjured himself when he swore, under penalty of perjury, to the affidavit. Judge Cogan did not refer DiVierno’s perjury matter to any law enforcement agency for prosecution.

Yet, on April 2, 2011, Judge Cogan dismissed all of Gounden’s claims, including the land-taking claim and boulder seizure claim.

Judge Cogan opined that Gounden "was required to exhaust state court procedures before coming to federal court about a land taking matter"  and  that "police can permanently control a person’s private property if a fire truck cannot get through to dwellings on the other side of a property, even if no fire is in progress and even if fire hoses can reach a fire."

However, Gounden, in a first time ever claim in the history of the law of the State of New York, claimed he could not bring his case in state court because no state court had jurisdiction. Gounden, in his papers, quoted section 208 of the New York State Eminent Domain Procedure Law which states that "no state court of this state shall have jurisdiction to hear and determine any (land taking) matter....” if the state did not give notice, hearing, make findings of fact, and publish those findings with respect to the property in question.

A “Dedication’ skips all these state-due process-mandated procedures in land taking. Judge Cogan did not, in his dismissal, explain how it is reasonable that police can legally remove Gounden’s boulder, without a warrant, because a fire truck could not pass, when not 40 yards from the Gounden’s property, in the same Block, a fire truck also could not pass to get to those row houses, owned and fenced off, by White people.
Judge Cogan did not cite a case, law, or regulation that authorized police to selectively seize the Goundens’ property under the supposed doctrine of a “potential fire danger”. There is a legal argument that selective application of police force, in a neighborhood known world-wide for its racism, violates equal protection clause of the 5th and 14th Amendments.

Judge Cogan, in his dismissal, also refused to explain how a state court could have jurisdiction when the state itself has explicitly said “no state court shall have jurisdiction...”

Gounden will appeal. The City and Judge Cogan were invited to comment for this report. At press time no comment was recieved.

Further inquiries can be sent:

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