Decided February 17, 2011

Matter of Uptown Holdings, LLC v City of New York, 77 AD3d 434, appeal dismissed.

APPEARANCES OF COUNSEL

Feerick Lynch MacCartney, PLLC, South Nyack (J. David MacCartney, Jr., of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Fred Kolikoff of counsel), for respondents.

Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones. Judge Smith concurs in an opinion.

Smith, J. (concurring). I agree that no substantial constitutional issue is presented, because, as the concurring opinion in{**16 NY3d at 765} the Appellate Division points out, this case is controlled by Matter of Goldstein v New York State Urban Dev. Corp. (13 NY3d 511 [2009]) and Matter of Kaur v New [*2]York State Urban Dev. Corp. (15 NY3d 235 [2010]). I think it necessary to point out, however, that our dismissal of this appeal does not imply endorsement of the Appellate Division majority opinion, which may be read to suggest that Kelo v New London (545 US 469 [2005]) should be followed by New York courts interpreting the New York Constitution (see Goldstein, 13 NY3d at 546 [Smith, J., dissenting] ["The good news from today's decision is that our Court has not followed the lead of the United States Supreme Court in rendering the 'public use' restriction on the Eminent Domain Clause virtually meaningless"]).

Appeal dismissed, etc.