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FEDERAL REPUBLIC OF YUGOSLAVIA v. PARK-71ST CORP.

October 27, 1995

FEDERAL REPUBLIC OF YUGOSLAVIA, Plaintiff, against PARK-71st CORPORATION and DARKO SILOVIC, Defendants, and THE REPUBLIC OF SLOVENIA, THE REPUBLIC OF BOSNIA AND HERZEGOVINA, THE REPUBLIC OF CROATIA, and THE REPUBLIC OF MACEDONIA, Intervening Defendants.


The opinion of the court was delivered by: SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 This action arises out of a dispute regarding the ownership of Apartment 16/17-B at 730 Park Avenue, New York, New York (the "Property"). Prior to 1992, the Property was occupied by successive Permanent Representatives to the United Nations (the "Ambassadors") of the Socialist Federal Republic of Yugoslavia ("SFRY"). After increasing political crisis, by 1992, the SFRY had allegedly dissolved and Darko Silovic, the Ambassador at that time, vacated the Property. *fn1"

 Plaintiff "Federal Republic of Yugoslavia" (Serbia and Montenegro) ("Plaintiff") seeks a declaratory judgment that it is entitled to sole ownership and possession of the Property. By motion for a preliminary injunction, Plaintiff also seeks temporary possession of the Property until the decision with respect to ownership is made. Plaintiff argues that it is entitled to possession on the grounds that it is the continuation of the SFRY. At a conference held on October 25, 1995, Plaintiff conceded that the ultimate issue of ownership of the Property presents a non-justiciable political question.

 Defendant Park 71st Corporation ("Park 71") takes no position regarding ownership or possession of the Property and states that it will abide by any judicial or administrative order that is made. See Declaration of Aaron Schmulewitz dated August 15, 1995 at P 7. Park 71 observes "that this dispute appears to be a political question, and may therefore not be justiciable by this Court." Id. at P 8.

 Defendant Darko Silovic, in his answer dated September 22, 1995 ("Silovic Answer") asserts, as an affirmative defense, that Plaintiff lacks standing and "that this matter presents a non-justiciable political question". Silovic Answer at PP 6-7.

 The United States of America (the "United States") has submitted a Statement of Interest pursuant to 28 U.S.C. § 517 expressing its view that this action should be dismissed in its entirety on the grounds that the issues to be decided are non-justiciable political questions and, as such, are not appropriate for court resolution (the "Statement of Interest").

 The Republic of Slovenia ("Slovenia"), the Republic of Bosnia and Herzegovina ("Bosnia and Herzegovina"), the Republic of Croatia ("Croatia") and the Former Yugoslav Republic of Macedonia ("FYROM") have intervened and oppose the relief requested by Plaintiff and each claim an interest in the Property.

 Slovenia moves to dismiss the Complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that Plaintiff is not recognized as a sovereign state by the United States and, therefore, lacks the capacity to bring suit in a United States' court and on the grounds that this case presents a non-justiciable political question.

 Bosnia and Herzegovina, Croatia and FYROM in their counterclaim and cross-claim ask for a declaration that the property is jointly owned by those states who are the successors to the SFRY and request the appointment of a custodian or receiver of the Property to preserve the Property for those ultimately found to be the successors in ownership. Further, and in contrast to the defendants, the United States and Slovenia, Bosnia and Herzegovina, Croatia and FYROM contend that while they "agree with Slovenia and the United States that plaintiff's capacity to bring its action is doubtful and that its action raises a specific nonjusticiable political issue, i.e., the rights of the successor states, inter se", they, nevertheless, contend that "the case as a whole is justiciable and must not be dismissed". Memorandum of Law of the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Republic of Macedonia in Response to the Statement of Interest of the United States and the Motion to Dismiss of the Republic of Slovenia at 3.

 The Court has carefully considered the submissions of the parties and the arguments of counsel, including the arguments made at a conference held on October 25, 1995 and, for the reasons set forth in the United States' Statement of Interest and the decision of the Second Circuit in Can v. United States, 14 F.3d 160 (2d Cir. 1994), Plaintiff's motion for a preliminary injunction is denied and this action (including any and all counterclaims and cross-claims) is hereby dismissed in its entirety on the grounds that the issues to be decided are non-justiciable political questions.

 The United States Supreme Court, in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), defined a non-justiciable political question in the following terms:

 
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to ...

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