SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
April 29, 1969
IN THE MATTER OF THE CITY OF NEW YORK, APPELLANT-RESPONDENT, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY TO BE ACQUIRED FOR THE NEW MUNICIPAL BUILDING AND OTHERS (MANHATTAN CIVIC CENTER AREA) BOUNDED BY BROADWAY AND OTHER STREETS, IN THE BOROUGH OF MANHATTAN. IN THE MATTER OF THE CITY OF NEW YORK, APPELLANT-RESPONDENT, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY TO BE ACQUIRED FOR AN ADDITION TO THE SITE FOR A NEW MUNICIPAL BUILDING ANNEX AND OTHERS (MANHATTAN CIVIC CENTER AREA ADDITION) BOUNDED BY BROADWAY AND OTHER STREETS, IN THE BOROUGH OF MANHATTAN. FRANCES BOEHM ET AL., RESPONDENTS; DUANE READE CORP. ET AL., RESPONDENTS-APPELLANTS
Concur -- Eager, J. P., Capozzoli, Markewich and Bastow, JJ.
The several appeals herein present the basic issue as to whether the trial court erred in its determination that claimants were entitled as just compensation to the interest on the respective awards at 4% from the respective vesting dates to August 1, 1966 and at 6% from August 1, 1966 to the dates of payment. We conclude that the determination was correct and adopt the reasoning of the trial court (57 Misc. 2d 156). Inasmuch, however, as the city contends that a contrary conclusion was reached in Matter of Port Auth. Trans-Hudson Corp. (Hudson Rapid Tubes Corp.) (20 N.Y.2d 457) we comment briefly thereon. In that decision the court rejected (upon its holding in Matter of City of New York [ Fifth Ave. Coach Lines ], 18 N.Y.2d 212) the contention of condemnees that the 4% statutory interest limitation (L. 1939, ch. 585) could not be constitutionally applied to the period subsequent to January 1, 1966. In so rejecting the contention the court wrote (20 N.Y.2d 457, 473) that "No substantial reason has been suggested requiring a different result in [this] case". The absence of such "substantial reason" in that record (in contradistinction to the instant case) is revealed by a brief recital of the facts relating to that issue in Matter of Port Auth. (supra). There title vested in the condemnor on September 1, 1962 (48 Misc. 2d 485, 487). Following the subsequent taking of proof on the question of the permissible rate of interest the trial court wrote (50 Misc. 2d 613, 616): "Of the several years involved here, [1962 to 1966, inclusive] the proof is satisfactory only as to the year 1966 in establishing the statutorily prescribed 4% interest to be unjust. This is not enough to warrant a departure from the interest rate currently approved by the latest decisions of the New York appellate courts." In this framework we interpret the language of our highest court (as to the absence of a "substantial reason") to be in substance an approval of the conclusion reached in that case at the trial level by Justice Loreto. We do not construe the writing to be an effective closing of the door to future re-examination of the issue as was done herein by the late Justice Geller.
Judgments entered July 3, 1968, insofar as appealed from, unanimously affirmed without costs or disbursements.
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