Motion — Adventurers Whitestone Corp. v. City of New York

Supreme Court, U.S.

(2) FILED

No. 85-244 OCT 11 1985

seacpp&. SPANIOL, JR

CLERK

IN THE EE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

ADVENTURERS WHITESTONE

CORPORATION,

Appellant,

vs.

THE CITY OF NEW YORK,

Appellee.

ON APPEAL FROM THE NEW YORK COURT

OF APPEALS

copy |

MOTION TO DISMISS OR AFFIRM

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of the

City of New York,

Attorney for Appellee,

100 Church Street (Room 5D-13),

New York, New York 10007.

Tel. (212) 566-4338

LEONARD KOERNER,

JOSEPH I. LAUER,

PETER MOUND,

ANDREW SCHWARTZ,

of Counsel.

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TABLE OF CONTENTS

ARGUMENT

SINCE ADVENTURERS RECEIVED

BOTH PRE-AND POSTJUDGMENT

INTEREST ON ITS CONDEMNATION

AWARD AT THE STATUTORY RATE

BECAUSE OF ITS ELECTION NOT TO

CONTEST THAT RATE DURING THE

LITIGATION OF ITS CLAIM FOR JUST

COMPENSATION, IT WAS CORRECT

TO DISMISS ADVENTURERS' SUBSE-

QUENT COMPLAINT FOR ADDITIONAL

INTEREST ON GROUNDS OF RES

JUDICATA. IT FOLLOWS THAT

DISMISSAL OF THE COMPLAINT DOES

NOT PRESENT A SUBSTANTIAL

FEDERAL QUESTION. MOREOVER,

THE APPLICATION OF RES JUDICATA

IS AN ADEQUATE NON-FEDERAL

BASIS FOR THE JUDGMENT...........

CAPT owe ce eeec cee es en dseseeeeasve

TABLE OF AUTHORITIES

Cases: Page

Adventurers Whitestone Corporation

v. The City of New York, 65 N.Y. 2d

83, 479 N.E. 2d 241, 489 N.Y.S. 2d

EE 3, 4, 14, 15-16,

18-19, 23

Brown v. United States,

ee coc ee cecesete 16, 23

City of Buffalo v. Clement Co.,

28 N.Y. 2d 241, 269 N.E. 2d

895, 321 N.Y.S. 2d 345 (1971) ...... 3

Eveandra Enterprises, Inc.

v. County of Nassau,

51 A.D. 2d 722, 378 N.Y.S. 2d

786 (2d Dept., 1976), aff'd

42 N.Y. 2d 849, 366 N.E. 2d

287, 397 N.Y.S. 2d 627

(1977), App. dism. 434 U.S. 804

ig OSES EE 9-10, 11

Henry v. Mississippi, 379 U.S.

Rs it a 18

Herb v. Pitcairn,

i Pie CD csceceeetecevecess 18

Herndon v. Georgia, 295 U.S.

ee a os ob eo a2 004 046 19

Kirby Forest Industries, Inc.

v. United States, 467 U.S.

» 1048S. Ct. 2187

ee ee hee e os eeeeaseees 14, 15

Louisville & Nashville

R. R. Co. v. Woodford,

Bee Se EE 45 6 bt eseseceeves 19

Matter of City of New York

(Brookfield Refrigeration

Corporation), 58 N.Y. 2d 532,

449 N.E. 2d 399, 462 N.Y.S. 2d

Ca EE Se eve ne Fak e566 ns ces aes 2, 7, 12, 33,

14-15, 20

Matter of City of New York

(Chrystie Street), 264 N.Y. 319,

Se eee Ge I 6 60S a dicce vekdeces 16-17

Matter of City of New York

(Glantz), 82 A.D.2d 829, 429

N.Y.S. 2d 676 (2d Dept.,

1981), aff'd 55 N.Y. 2d 345,

434 N.E. 2d 1036, 449 N.Y.S. 2d

GEE: cccucvetnedeaedssceeeees 5

Matter of City of New York

(New Munic. Bldg.), 57 Mise

2d 156, 291 N.Y.S. 2d 656 (Sup.Ct.,

N.Y. Co., 1968), aff'd sub nom.

Matter of City of New York

(Manhattan Civic Center Area),

32 A.D.2d 530, 299 N.Y.S. 2d 575

(Ist Dept., 1969), aff'd 27

N.Y. 2d 518, 261 N.E. 2d 808, 313

ee SF Ff. Perr errr rTe 12, 20

Matter of City of New York

(Roteeco Corp.), 33 N.Y. 2d 970,

309 N.E. 2d 135, 353 N.Y.S. 2d 736

GPE aebakvinste ees etaseoresesrs 20

Matter of Rochester Carting Co.

v. Levitt, 36 N.Y. 2d 242,

326 N.E. 2d 808, 367 N.Y.S. 2d

yg, | RR eerie er re 10, 23

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Michigan v. Long, 463 U.S. 1032

CIOBS) wn cccccccvcccccccccccccsecs 18, 22

Parker v. North Carolina, 397

ak PY CEG als Cae e weet ees 19

Seaboard Air Line Ry. v. U.S.,

_ ££ s & (| Pr 3, 23

South Bronx Neighborhood

Development Plan, 110 Misc. 2d

571, 442 N.Y.S. 2d 869 (Sup. Ct.,

Bronx Co., 1981), aff'd 89 A.D. 2d

948, 454 N.Y.S. 2d 566 (Ist Dept.

1982), aff'd 58 N.Y. 2d 532, 449

N.E. 2d 399, 462 N.Y.S. 2d

Se Ga aa week bW eda obs een cee 7, 14-15

Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S.

Se EE cea veueeeb cebekwseeés se 21

Statutes:

General Municipal Law

er ere 2, 4, 22

N.Y.C. Administrative Code

RE ans en ee ee bw alee 21

Other Authority:

Fifth Amendment of the United States

COMECICUEIOR <. 0.0 cdc ctivcvseceeceses 4,12

Fourteenth Amendment of the United

ECGS COO TRMEIO on htc tecveseees 4, 13

Pe ee Oe ea Oe ay ee ce iiet hie See ra ae eee ee

No. 85-244

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

ADVENTURERS WHITESTONE

CORPORATION,

Appellant,

vs.

THE CITY OF NEW YORK,

Appellee.

ON APPEAL FROM THE NEW YORK COURT

OF APPEALS

MOTION TO DISMISS OR AFFIRM

PRELIMINARY STATEMENT

Pursuant to Rule 16.1 of the Rules of this

Court, the appellee, the City of New York ("City"),

moves that the appeal be dismissed, or in the

alternative that the judgment of the New York

i

Court of Appeals be affirmed.

STATEMENT OF THE CASE

(1)

Appellant, Adventurers Whitestone Corpora-

tion (hereafter "Adventurers"), attacks the

interpretation placed by the New York State Court

of Appeals on General Municipal Law, Sec. 3-a(2).

This statute provides:

The rate of interest to be

paid upon any judgment or

accrued claim against the

municipal corporation

arising out of condemna-

tion proceedings or action

to recover damages for

wrongful death shall not

exceed six per centum per

annum.

Pursuant to this statute, the courts have held

that the 6% statutory rate is binding on a

condemnee unless the condemnee introduces proof

to overcome the presumed correctness of the rate

during the litigation of its claim for just compensa-

tion. Matter of City of New York (Brookfield

Refrigeration Corporation), 58 N.Y. 2d 532, 449

N.E. 2d 399, 462 N.Y.S. 2d 619 (1983); City of

Buffalo v. Clement Co., 28 N.Y. 2d 241, 269 N.E.

2d 895, 321 N.Y.S. 2d 345 (1971). This interpretation

follows the mandate of this Court that interest is

part of judicially required just compensation.

Seaboard Air Line Ry. v. U.S., 261 U.S. 299 (1923).

(2)

Adventurers was a condemnee which did not

express dissatisfaction with the 6% statutory rate

during the litigation of its claim for just compensa-

tion. However, after it accepted its condemnation

award with 6% interest added up to the date of

availability of payment, it commenced a plenary

action for additional interest. The Court of Appeals

ordered the dismissal of the complaint in

accordance with "usual principles of claim

preclusion" (res judicata), finding Adventurers'

plenary action to be an unlawful attempt to raise in

a second action an issue which it could have raised

in the condemnation proceeding itself. 65 N.Y. 2d

83, 89, 479 N.E. 2d 241, 245, 489 N.Y.S.2d 896, 900

Ǥ-

(1985) (App. A9).* The Court of Appeals also made

reference to the doctrine that, although prejudg-

ment interest on a condemnation award is required

by the just compensation clause of the Federal and

State Constitutions, postjudgment interest is

payable under the statute to compensate for delay

in payment of the award. 65 N.Y. 2d 83, 85, 479

N.E. 2d 241, 242, 489 N.Y.S. 2d 896, 897 (App. A2-

3). Since Adventurers received both pre- and

postjudgment interest and had elected not to con-

test the statutory rate in the condemnation

proceeding, it was held not entitled to maintain a

subsequent action for additional interest.

| Adventurers alleges that, as applied to it, the

Court of Appeals' interpretation of General

Municipal Law, Sec. 3-a(2), is repugnant to the Fifth

and Fourteenth Amendments of the Constitution of

the United States.

*Appendix references are to the Appendix to the

Jurisdictional Statement. Page references to the

statement itself will be preceded by "J.S."

(3)

Adventurers owned certain real estate in the

City of New York, County of Queens. The City

acquired this property on April 4, 1974 through the

exercise of its power of eminent domain. Litigation

of Adventurers' claim for just compensation was

conducted in Queens County and continued until

December 6, 1978 (J.S. 2). A judgment by the Trial

Court, entered on July 18, 1979, awarded

Adventurers $529,750 for its property. Appeals

were taken by both Adventurers and the City. The

Appellate Division modified the judgment to

$573,850 and the Court of Appeals affirmed sub

nom. Matter of City of New York (Glantz), 82 A.D.

2d 829, 439 N.Y.S. 2d 676 (2d Dept., 1981), aff'd 55

N.Y. 2d 345, 434 N.E. 2d 1036, 449 N.Y.S. 2d 669

(1982). Following the Court of Appeals' affirmance,

the City made payment of the balance due

Adventurers, with interest thereon included at 6%

from the date of condemnation to the date of

payment. Total payment amounted to $831,067.73.

-5-

Wiles nares) oo

In 1982, Adventurers collected the award. In

1983, it commenced a new action in New York

County for additional interest of 3%. It was, and is,

Adventurers’ position that the issue of the rate of

interest on a condemnation award need not be raised

during the trial of a claim for just compensation,

but may instead be the subject of a separate lawsuit

after the condemnation judgment is entered and the

award, inclusive of statutory interest to the date of

payment, is collected.

In the new proceeding, Adventurers conceded

that it had adduced no proof to overcome the

presumed correctness of the 6% statutory interest

rate during the litigation of its claim for just

compensation, which resulted in the aforementioned

judgment entered on July 18, 1979. Nevertheless, it

contended that it was entitled to additional interest

because, in 198], a decision in a different county,

and in an entirely different case, awarded 9%

interest, as of January 1, 1978, to certain

condemnees who, in contrast with Adventurers,

-6§-

Nee

during litigation of their claims for just compensa-

tion introduced proof deemed sufficient to

overcome the 6% statutory rate. South Bronx

Neighborhood Development Plan, 110 Mise. 2d 571,

442 N.Y.S. 2d 869 (Sup. Ct., Bronx Co., 1981), aff'd

89 A.D. 2d 948, 454 N.Y.S. 2d 566 (Ist Dept., 1982),

aff'd sub nom. Matter of City of New York

(Brookfield Refrigeration Corporation), 58 N.Y. 2d

532, 449 N.E. 2d 399, 462 N.Y.S. 2d 619 (1983).

Thus the New York courts were presented with

the following question:

may Adventurers, which collected its

condemnation award, with statutory interest

to the date of payment, without any

challenge to the statutory rate, bring a

subsequent plenary action for additional

interest because of a later decision

awarding interest at a higher rate to

unrelated condemnees who challenged the

statutory rate in a different condemnation

proceeding?

The Court of Appeals answered this question

in the negative. It recognized that payment to

Adventurers had been postponed due to appeals from

the judgment of the Trial Court. However, it did

-7-

not consider this circumstance as providing a basis

for departure from the settled law that a

condemnee who does not express dissatisfaction

with the statutory rate of interest during the litiga-

tion of its claim for just compenstaion may not

receive interest at a higher rate.

REE Ee

ARGUMENT

SINCE ADVENTURERS RECEIVED

BOTH PRE- AND POSTJUDGMENT

INTEREST ON ITS CONDEMNATION

AWARD AT THE STATUTORY RATE

BECAUSE OF ITS LLECTION NOT TO

CONTEST THAT RATE DURING THE

LITIGATION OF ITS CLAIM FOR

JUST COMPENSATION, IT WAS

CORRECT , TO DISMISS

ADVENTURERS' SUBSEQUENT

COMPLAINT FOR’ ADDITIONAL

INTEREST ON GROUNDS OF RES

JUDICATA. IT FOLLOWS THAT

DISMISSAL OF THE COMPLAINT

DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION.

MOREOVER, THE APPLICATION OF

RES JUDICATA IS AN ADEQUATE

NON-FEDERAL BASIS FOR THE

JUDGMENT.

(1)

This Court's practice of dismissing appeals for

want of a substantial federal question is well

established. As recently as 1977, this Court

dismissed an appeal from a decision of the New

York Court of Appeals which included the same

determination which is the basis for the present

appeal. Eveandra Enterprises, Inc. v. County of

«Ge

Nassau, 42 N.Y. 2d 849, 366 N.E. 2d 287, 397 N.Y.S.

2d 627 (1977), app. dism. 434 U.S. 804 (1977).

The opinion states (42 N.Y.2d at 850, 366 N.E.

2d at 287-288, 397 N.Y.S.2d at 628):

We agree ... that claimant

has not demonstrated that

the validity of the

statutory prejudgment

interest rate of 6% is con-

stitutionally infirm.

Compensation accruing at

the time of vesting and for

the period prior to an

award in a condemnation

proceeding "is payable as a

substitute for the

beneficial use of real

property" (Matter of

Rochester Carting Co. v.

Levitt, 36 NY 2d 264, 268,

367 N.Y.S. 2d 242, 245, 326

N.E. 2d 808, 810).

(Emphasis supplied)

There is no more substantiality

questions presented here than existed in Eveandra.

In that case the condemnee adduced proof during

the litigation of its claim for just compensation

seeking to overcome the presumed correctness of

the 6% statutory interest rate. The judgment of the

-10-

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trial court, which denied Eveandra interest in excess

of 6%, was entered on June 26, 1975 (See 51 A.D. 2d

722, 378 N.Y.S. 2d 786 [2d Dept., 1976)).

In this case, Adventurers seeks review of the

denial of interest in excess of 6% even though it

elected not to challenge the 6% rate during the

litigation of its claim for just compensation. It

characterizes its nonfeasance in this respect as "not

surprising" in view of the 1977 Court of Appeals

decision in Eveandra (J.S. 3). However, Adventurers

ignores the fact that, since the Eveandra judgment

was entered on June 26, 1975, the period covered

thereby did not account for economic conditions

prevailing at a later date. Adventurers' judgment

was entered on July 18, 1979, and the litigation of its

claim for just compensation had continued until

December 6, 1978. Adventurers points out that the

litigation on December 6, 1978 consisted of a

"Hearing on Objections" (J.S. 2), but that does not

mitigate its lack of challenge or proof. It is the

usual practice in New York City condemnation

-ll-

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proceedings to litigate the issue of rate of interest

during the Hearing on Objections; and this may be

done even if the issue was not raised earlier in the

proceeding. Matter of City of New York (Brookfield

Refrigeration Corporation), supra , 58 NY 2d at 535,

36, 449 N.E. 2d at 400, 462 N.Y.S. 2d at 620; Matter

of City of New York (New Munic. Bldg.), 57 Mise 2d

156, 157, 291 N.Y.S. 2d 656, 657 (Sup. Ct., N.Y. Co.,

1968), aff'd sub nom. Matter of City of New York

(Manhattan Civic Center Area), 32 A.D. 2d 530, 299

N.Y.S. 2d 575 (Ist Dept., 1969), aff'd 27 N.Y. 2d 518,

261 N.E. 2d 808, 313 N.Y.S. 2d 995 (1970). Thus,

Adventurers had the opportunity to adduce proof to

overcome the 6% rate at the December 6, 1978

hearing and failed to avail itself of that opportunity.

(2)

Adventurers claims that to require submission

of proof as to the interest rate during the litigation

of the claim for just compensation is repugnant to

the just compensation clause of the Fifth

Amendment and the due process clause of the

-12-

Fourteenth Amendment of the Constitution of the

United States (J.S. I). It urges that this requirement

deprived it of just compensation and due process

because appeals caused postponement of payment

until 1982. Between the date of judgment and the

date of payment, the Brookfield decision was handed

down; and it provided for interest at 9% as of

January 1, 1978 (J.S. 3). Adventurers proposes the

novel theory that a condemnee who expresses no

dissatisfaction with a statutory rate during the

litigation of its claim for just compensation and

collects its condemnation award, including

prejudgment interest at the statutory rate and

postjudgment interest at the same rate, should

thereafter be permitted to make a subsequent claim

for interest at a higher rate. No authority has been

found to support Adventurers' theory that a

condemnee may split its cause of action for just

compensation by making its claim for interest or

"delay compensation" the subject of a separate post

judgment and post payment action.

-13-

Kirby Forest Industries, Inc. v. United States,

467 U.S. , 104 S. Ct. 2187 (1984), relied on by

Adventurers, does not support its position (J.S. I). In

Kirby Forest, this Court pointed out that, when land

value changes materially between the date of

valuation and the date the judgment is paid, the

effect of this interim change in value should be

accounted for. However, as noted by the Court of

Appeals, Adventurers’ action here is "separate and

apart from the condemnation proceeding and ... is

predicated on a change in interest rate rather than a

change in value," 65 N.Y. 2d at 88, n. 4, 479 N.E. 2d

at 244, 489 N.Y.S. 2d at 899 (App. A6-7). Secondly,

there was no change in the applicable rate between

the conclusion of the litigation of Adventurers'

claim for just compensation and its collection of

payment. Brookfield, decided by the trial court on

August 7, 1981 (110 Mise. 2d 571, 442 N.Y.S. 2d 869,

supra), held that condemnees who introduced proof

to overcome the 6% statutory rate during the litiga-

tion of their claims for just compensation

oti

tetas te

established that economic conditions prevailing

after January 1, 1978 entitled them to 9% interest as

of that date. Brookfield also held that this proof

was insufficient to support a rate in excess of 9%

subsequent to 1978. Litigation of Adventurers'

condemnation claim continued until December 6,

1978. Adventurers' judgment was entered on July 18,

1979. After the appeals were disposed of, payment

was made in 1982. There was no change in the

interest rate during the interim period. The

controlling reason for denying to Adventurers

interest in excess of 6% is that it did not raise the

issue of interest rate in the condemnation

proceeding. In discussing Kirby Forest further, the

Court of Appeals indicated its recognition of the

due process issue raised by Adventurers.

Specifically, the Court of Appeals stated (65

N.Y. 2d at 88, n. 5, 479 N.E. 2d at 244, 489 N.Y.S.

2d at 899; App. A7):

When the constitutional

interest issue has been

raised before the

ao $B

condemnation court and

during the time necessary

to dispose of the appeal

the interest rate undergoes

a substantial upward

change, it may, therefore,

be necessary to accord the

claimant a further hearing

at which that fact can be

established.

However, Adventurers did not raise the

interest issue before the condemnation court; nor

did the rate undergo an upward change while

Adventurers' judgment was on appeal.

Consequently, the abovementioned concept is not

applicable to Adventurers.

_Adventurers' position is not supported by

Brown v. United States, 263 U.S. 78 (1923) (J.S. 8).

In that case, the change in time between the fixing

of value and payment refers to the value of the real

estate, not the interest rate. As to interest, Brown

gives approval to the inclusion of interest to the

date of judgment, Id. at 80.

Matter of City of New York (Chrystie Street),

264 N.Y. 319, 190 N.E. 654 (1934) (J.S. I, 5) is also of

-16-

no assistance to Adventurers. That case involved

the construction of a statute which cuts off interest

on a condemnation award entirely six months after a

condemnaticn decree was entered unless a demand

for additional interest is made. The Court of

Appeals interpreted this statute to permit the six

month period, in the case of a condemnation award

modified on appeal, to run from the date of

modification. Neither the statute nor its interpret-

ation is applicable here where Adventurers received

interest on its award to the date of payment.

Chrystie Street does not support the theory that a

condemnee, who does not raise the issue of interest

rate during the condemnation proceeding, may sue

subsequently for interest at a rate higher than that

paid pursuant to the condemnation judgment regard-

less of whether that judgment is modified on appeal.

(3)

Adventurers' appeal should be _ dismissed

because the order appealed from rests on an

adequate and independent state ground. The New

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York Court of Appeals held that Adventurers' claim

for additional interest on its condemnation award

should have been raised at the condemnation trial

and was thus barred by res judicata.

The dismissal of Adventurers' suit on the basis

of “claim preclusion" (res judicata) requires

dismissal of this appeal. This Court has long held

that the prohibition on advisory opinions and the

partitioning of power between the federal and state

systems require the dismissal of an appeal when the

decision below rests on "adequate and independent

state grounds." Herb v. Pitcairn, 324 U.S. 117, 125

(1945); Michigan v. Long, 463 U.S. 1032, 1041 (1983);

Henry v. Mississippi, 379 U.S. 443, 446-448 (1965).

Central to the New York Court's decision is

the holding that, under New York law, Adventurers'

suit is barred by res judicata: "Here plaintiff

neither raised the question of the rate of interest

constitutionally required in the condemnation pro-

ceeding nor preserved by stipulation its right to

litigate the issue in another forum. Its claim to the

-18-

higher rate of interest is, therefore, barred by res

judicata" (65 N.Y. 2d at 91, 479 N.E. 2d at 246, 489

N.Y.S. 2d at 901; App. All). Sinee Adventurers did

not raise the constitutional issue at its condemna-

tion trial, it has waived the right to raise it in a

subsequent law suit. This case is similar to

numerous other cases in which this Court held that

the waiver of a federal claim by failure to raise it

at the proper time below constitutes an adequate

state ground precluding review. Illustrative of the

cases where procedural failure under state law

precluded Supreme Court review are: Parker v.

North Carolina, 397 U.S. 790, 798 (1970) (a failure to

object to the composition of a grand jury before the

entry of a guilty plea); Herndon v. Georgia, 295 U.S.

441 (1935) (a failure to preserve the issue for appeal,

such as by properly making exceptions or assigning

errors); Louisville & Nashville R.R. v. Woodford, 234

U.S. 46 (1914) (the raising of a federal issue for the

first time in the appellate court, without bringing it

to the trial court's attention).

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The principle of res judicata was properly

applied in the instant case. In answer to its claim

that it could not have litigated the interest issue in

the condemnation proceeding, the Court of Appeals

stated: "Indeed, the interest issue has been litigated

before the condemnation court in a number of cases

(Matter of City of New York [Brookfield Refrig.

Corp.], 58 NY 2d 532 [449 N.E. 2d 399, 462 N.Y.S.

2d 619], supra; Matter of City of New York

[Roteeco Corp.], 33 NY 2d 970 [309 N.E. 2d 135, 353

N.Y.S. 2d 736], Matter of City of New York

[Manhattan Civic Center Area], 27 NY 2d 518 [261

N.E. 2d 808, 313 N.Y.S. 2d 995], affg 32 AD 2d 530

[299 N.Y.S. 2d 575], affg 57 Mise 2d 156 [291 N.Y.S.

2d 656]. There was, therefore, no bar to plaintiff's

raising the issue in the Queens proceeding" (65 N.Y.

2d at 89, 479 N.E. 2d at 245, 489 N.Y.S. 2d at 900;

App. A8-9).

The test for adequacy of the state ground is

also met by res judicata. Adequacy requires that, if

the Supreme Court were to rule on the federal

-20-

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question in the case, it would not affect the

outcome below; and thus such ruling would merely

be an advisory opinion. Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562, 566 (1977). A ruling

here that postjudgment interest is part of

constitutionally required just compensation would

not lift the bar to Adventurers' suit.

Finally, to be deemed independent, the state

court's ruling must be founded on state law and

supported by state court precedent. A reading of

the decision below demonstrates that the court's

ruling here was reached pursuant to = an

interpretation of New Ycrk City Administrative

Code §B15-28.0 and applicable New York case law

concerning res judicata. (See App. 9-11 for citation

of cases.) The fact that the New York court

reached the federal question presented in the case

does not change the analysis. Where both federal

and state grounds are present in a case, the Court

will dismiss if the non-federal ground adequately

supports the decision and its independence is

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apparent from the "four corners of the opinion."

Michigan v. Long, supra, 463 U.S. at 1040

(4)

Although General Municipal Law, Sec 3-a(2),

limits a condemnation award to 6% per annum, the

New York courts' interpretation of the statute

permits interest at a higher rate to condemnees who

overcome the presumed correctness of the statutory

rate during the litigation of their claims for just

compensation. As so interpreted, the statute is not

repugnant to the Constitution of the United States.

Adventurers was limited to 6% interest on its award

because it did not claim interest in excess of 6%

during the condemnation proceeding. It follows that

Adventurers' appeal does not present a substantial

federal question and should be dismissed.

(5)

The determination that postjudgment interest

is not part of constitutional just compensation is not

repugnant to the United States Constitution.

Adventurers concedes that this ruling follows prior

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mnt

decisional law in New York State and in other

jurisdictions (J.S. 10, 11 [footnotes]). Matter of

Rochester Carting Co. v. Levitt, 36 N.Y. 2d 264,

326 N.E. 2d 808, 367 N.Y.S. 2d 242 (1975), is the

New York decision, cited in Adventurers to support

the Court of Appeals' conclusion as to postjudgment

interest (65 N.Y. 2d at 87, 479 N.E. 2d at 243, 489

N.Y.S. 2d at 898; App. A5-6).

In Rochester Carting, the Court of Appeals

upheld a statute permitting interest to be cut off

entirely 20 days after the State Comptroller is

authorized to issue a warrant for ow of a

condemnation award. The opinion points out that

there is no common law right to interest on a

judgment (36 N.Y. 2d at 267, 326 N.E. 2d at 810, 367

N.Y.S. 2d at 245).

Adventurers cites cases decided by this Court

wherein the government sought to avoid payment of

interest entirely. Seaboard Air Line Ry. v. U.S., 261

U.S. 299 (1923); Brown v. United States, 263 U.S. 78

(1923). None of the authority relied on involves a

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set tel pe:

situation such as that present here: where

condemnee received pre- and postjudgment interest

at the statutory rate, thereby silently acquiescing to

that rate during the litigation of its claim for just

compensation. Since this acquiescence provides an

“adequate and independent state ground" to support

the order appealed from (supra), and_ since

Adventurers here received postjudgment interest to

the date of payment, there is insufficient basis for

the instant appeal.

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CONCLUSION

This appeal should be dismissed for lack of

jurisdiction. Alternatively, the judgment of the

Court cf Appeals should be affirmed.

Dated: October 9, 1985

Respectfully submitted,

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of the

City of New York,

Attorney for Appellee.

LEONARD KOERNER,

JOSEPH I. LAUER,

PETER MOUND,

ANDREW SCHWARTZ,

of Counsel.

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