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CITY NEW YORK v. STATE NEW YORK (12/01/69)

COURT OF CLAIMS OF NEW YORK Claim No. 47847 1969.NY.43683 <http://www.versuslaw.com>; 306 N.Y.S.2d 131; 61 Misc. 2d 517 December 1, 1969 CITY OF NEW YORK, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT J. Lee Rankin, Corporation Counsel (Isidore Heyman, George Newman and Sanford Warren of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (Grace K. Banoff and Donald C. Glenn of counsel), for defendant. Sidney Squire, J. Author: Squire


Sidney Squire, J.

Author: Squire

 In this claim for $1,696,692.61, the claimant has moved for summary judgment in its favor, and the defendant has cross-moved for a dismissal of the case.

By these motions the litigants have agreed that the affidavits, exhibits and memoranda of law submitted are sufficient (without a trial) for the legal decision of the pervasive question of liability. Further, they are in accord that if it be declared that the claimant is entitled to judgment herein, then there would be a direction for an assessment of damages (to determine the exact amount of the judgment to be entered).

The claim (claimant's pleading verified on March 7, 1967 and filed herein on March 9, 1967) alleges in part that

"Third: This claim arises out of various condemnation proceedings undertaken by claimant to acquire interests in real property in the City of New York in connection with Federally-aided interstate highway projects pursuant to Section 340-b of the Highway Law, as set forth in the Schedule a copy of which is annexed hereto as Exhibit 'A'.

"Fourth: Pursuant to Subdivision 5 of Section 340-b of the Highway Law, claimant is entitled to reimbursement in full for the costs and expenses of such acquisitions, in the manner as provided in Section 349-c of the Highway Law."

Said Exhibit "A" is a schedule containing minimal details of 86 decrees (final, partial and/or supplements thereto) and other particulars ostensibly composing the demanded $1,696,692.61. The schedule lists specific dates of requests (for payments) made from August 30, 1960 through April 22, 1966.

It is undisputed that the State had reimbursed the city for each principal amount decreed plus one year's interest thereon. But the State refused to repay the city for interest items which the city had paid beyond any one-year period. Accordingly, each of the items delineated in the schedule denominated "Exhibit 'A'" allegedly represented the numerous amounts of interest paid by the city to property owners in specified condemnation proceedings beyond the respective cut-off periods of one year's interest.

It was and is the State's legal position that interest reimbursement was constricted to one year from each title vesting date. Opposed to that, is the city's posture that no such confinement of interest was applicable. To resolve such conflict of legal opinions, this litigation was instituted. In addition to said basic question, the State also maintains that claimant should have instituted an article 78 proceeding instead of suing in this court, and, in any event, that the case was not timely instituted. Therefore, reasons the defendant, judgment cannot be recovered against it herein.

In more simple terms, on these two motions the parties herein request determinations of the following dispositive issues of law:

1. Is interest reimbursable beyond one year from each title vesting date?

2. Is this court the proper forum or should this litigation be in the Supreme Court of our State?

3. Was this claim timely filed?

I.

As alleged in the quoted paragraph third of the pleading, the basic statute to be construed at bar is the pertinent provision of section 340-b of the Highway Law of our State, headed "Construction, improvement and maintenance of state interstate highways", of which subdivision 5 begins as follows: "5. Any property in the city of New York which is deemed by the superintendent of public works and the city of New York to be necessary for the construction, reconstruction and maintenance of interstate highways shall be acquired by the city of New York in the same manner as provided in section three hundred forty-nine-c of this chapter relating to the acquisition of property for the state arterial system in the city of New York, except that the city shall be reimbursed in full for the costs and expenses incurred by such acquisitions for interstate highways subsequent to the enactment of the federal aid highway act of nineteen hundred fifty-six, in the manner as provided in section three hundred forty-nine-c of this chapter relating to reimbursement of costs and expenses of acquisitions for the state arterial highways."

The litigants emphasize that the critical portion of that sentence is at the end thereof reading "in the manner as provided in section three hundred forty-nine-c of this chapter". Indeed, the phrase "in the manner" appears to be the pivot of this controversy; the axis on which this litigation revolves. The city avows that "in the manner" means the method (the procedure or the mechanics) recited in the reference subdivision 3.3 of section 349-c. The State opines that everything in said subdivision 3.3 of section 349-c applies, especially the restriction of interest to one year. Said section 349-c headed "Design, construction, and payment of costs" is part of article XII-B of the Highway Law, relating to "State Arterial Highways Passing Through Cities". The material portions of said section 349-c appear in subdivision 3.3 thereof, more particularly:

"3. With relation to the city of New York: * * * 3.3. Any property which is deemed by the superintendent of public works and the city of New York to be necessary to carry out the provisions of this article shall be acquired by the city of New York by condemnation, purchase, or otherwise, pursuant to the city charter and administrative code, provided, however, that where property is acquired by purchase the superintendent of public works shall first file with the board of estimate of the city of New York an estimate of the costs and expenses of such acquisition of property and any liability incurred by reason thereof, or by reason of the adverse effect of construction on adjacent property values, and upon approval of such estimate by such board of estimate of the city of New York, the liability of the state for such costs and expenses shall be expressly limited to the amount of such estimate. Where the property is acquired by condemnation, the approval of the superintendent of public works shall first be required, and the liability of the state shall thereafter be determined by the amount of damages awarded by the court for the property acquired, with interest on such award from the date of vesting of title to the date of final confirmation of the award by the court (provided that such interest period shall in no event exceed one year in duration from the date of vesting of title), together with costs, charges and expenses taxed by the court. The costs and expenses of such acquisition of property and any liability incurred by reason thereof, including legal damages caused by such acquisition, shall be paid by the city of New York in the first instance and shall be borne as follows: fifty per centum by the state and fifty per centum by the city. Whenever the city shall furnish to the Superintendent of public works a certification by the corporation counsel of the city of New York of the right, title or interest vested in the city of New York in and to property acquired for the purposes of this article for which reimbursement is to be made by the state of New York to the city of New York and a certificate stating the amount due such city, including the amount determined by a partial or final decree of the court having jurisdiction of any such condemnation proceedings, for the said acquisition of the property and any other costs and expenses thereof as herein authorized, the amounts so fixed shall be paid out of the state treasury to the city comptroller, after audit by the state comptroller, from monies that are now or that shall hereafter be made available to pay such costs and expenses, but not until there shall have been filed with the state comptroller a certificate of the attorney general showing his approval of the certification of the corporation counsel as herein provided."

The foregoing parenthetical matter: "(provided that such interest period shall in no event exceed one year in duration from the date of vesting of title)" is the basic defense of the State herein. It insists that this restrictive language must be read into section 340-b. On such construction, the State resists reimbursement of interest beyond any first-year period.

Opposed to this reasoning is the city's argument that interest is a matter of substance, not a "manner". Resort to recognized law dictionaries and unabridged dictionaries demonstrates that manner means "method", "a way of acting", "a way of doing", "a mode of action", "a mode of procedure" and that the prime synonyms of "manner" are "method" and "way".

Thus, "in the manner" referred only to the procedural conditions such as each of the essential certifications recited in said subdivision 3.3 of section 349-c. In practical terms, the procedure recited in the fourth sentence of said subdivision required:

1. "a certification" by the city's corporation counsel as to title,

2. "a certificate (apparently from the city comptroller) stating the amount due such city",

3. "a certificate of the (State's) attorney general showing his approval of the certification of the corporation counsel" and

4. an "audit by the state comptroller".

Says the city, it was this procedural machinery which the Legislature intended by "in the manner". This, in effect, was another utilization of the time-honored principle of "checks and balances" enunciated by the founding fathers of our Nation and repeated subsequently on all levels of government. The salutary purpose of the procedure ("the manner") was to cause the city's corporation counsel and its comptroller to issue their separate official certifications upon which the State's attorney general and its comptroller would severally perform their official duties.

In my opinion, the Legislature did not intend that the restriction of one year's interest recited in subdivision 3.3 of section 349-c (part of "Article XII-B. -- State Arterial Highways Passing Through Cities") be engrafted upon subdivision 5 of section 340-b (part of "Article XII -- State Routes"). It would have been simple for our lawmaking body to state such restriction unequivocally. Indeed, a review of the statutory history compels the legal conclusion of no such limitation of interest repayment.

The legislative and executive branches of our State government always have been keenly aware of the substantial requirements of the inhabitants of the Empire State, their economy and well-being. In the years of World War II the essential needs for the conflicts raging in many portions of the globe, obscured and prevented attention to local matters at home. There resulted a reduction in the construction and maintenance of our highways. The war effort was predominant. Nonessential highway travel was frowned upon. The sale of gasoline for motor vehicles was rationed. Eventually, as our country was emerging victorious in continent after continent, those in charge of the destinies of our State (in concert with our national officials) began to plan for postwar needs and economy.

Among the significant results emerging from the planning of the Dewey administration was the enactment of chapter 543 of the Laws of 1944, denominated "an act to amend the highway law, in relation to the preparation of designs, plans, specifications and estimates of a state arterial system in cities". This created a new article, article XII-B, as an amendment to chapter 25 of the Consolidated Laws (our Highway Law). The legislative attention to the tremendous details thereof are readily apparent from a reading of pages 1083 through 1107 in the official publication of the Laws of New York for said year. The Arterial Highway Program was legislated into said Highway Law as sections 349-b through 349-f.

Instead of paraphrasing or summarizing the purposes declared and potentials envisioned by such enactment, it is better to quote the precise language of the initiating portion thereof:

"ยง 349-b. Declaration of policy. The modernization and the construction of arterial highways which are to pass through cities, will contribute greatly to post-war reemployment and to the stimulation of industrial recovery. The resources and the technical skills that are available to the state for these purposes, should be used for the benefit of the cities upon the principle that the construction of such arterial highways is a matter of state concern. However, it is the manifest intention of the state to recognize and to preserve the powers or rights heretofore conferred upon or delegated to any city to regulate the property, affairs or government thereof, in the modernization and the construction of such arterial highways. The integration of such arterial highways in the system of state highways throughout the state contemplates an expenditure of public funds to pay the costs that are attendant upon the fulfilment of a program of the work of modernization and construction as herein mentioned, as well as of the maintenance of such public ways. It is hereby declared to be the purpose of this act to initiate the procedure that is prerequisite to any project of the magnitude herein provided, to the end that orderly progress and equitable distribution of effort and moneys may be observed in the administration of this article, and, from time to time, when expressly authorized by the legislature, any section of such arterial highways may be constituted, constructed, reconstructed, improved and maintained as a part of the state highway system."

Upon continued study of the program, one year later, chapter 619 of the Laws of 1945 was enacted on April 9, 1945. Section 349-c was amended in many particulars as well as its heading which became "Design, construction, and payment of costs". In the first sentence of subdivision 1 thereof, there was a specific differentiation between "(1) * * * any extension or continuation of any highway or route * * * upon any public street or streets in any city outside of the City of New York * * * and (2) of any existing or proposed main routes or thoroughfares in the city of New York; all of which are designated in this article."

Such division had been warranted in the memorandum dated March 26, 1945 (Appendix A, State's Answering Memorandum) from the defendant's Department of Public Works to Honorable Charles D. Breitel, then Counsel to Governor Dewey. On page 2 thereof, subdivision f, it declared that "it has been necessary to divide the bill substantially in two parts, one of which is applicable to New York City only." There followed this emphatic sentence: "There is no basic difference in benefits as between New York City and other cities, the difference in the law being merely in methods of procedure."

Subdivision 3.3 of said section 349-c was first enacted as part of said chapter. The first paragraph of said subdivision 3.3 initially provided: "3.3. Any property which is deemed by the superintendent of public works and the city of New York to be necessary to carry out the provisions of this article shall be acquired by the city of New York by condemnation, purchase, or otherwise, pursuant to the city charter and administrative code, provided, however, that the superintendent of public works shall first file with the board of estimate of the city of New York an estimate of the costs and expenses of such acquisition of property and any liability incurred by reason thereof, or by reason of the adverse effect of construction on adjacent property values, and upon approval of such estimate by such board of estimate of the city of New York, the liability of the state for such costs and expenses shall be expressly limited to the amount of such estimate. The costs and expenses of such acquisition of property and any liability incurred by reason thereof, including legal damages caused by such acquisition, shall be paid by the city of New York in the first instance and shall be borne as follows: fifty per centum by the state and fifty per centum by the city. Whenever the city shall furnish to the superintendent of public works the written evidence and muniments of title to said property together with a certificate stating the amount due such city, including the amount determined by a partial or final decree of the court having jurisdiction of any such condemnation proceedings, for the said acquisition of the property and any other costs and expenses thereof as herein authorized, the amounts so fixed shall be paid out of ...


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