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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0246%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 935

## Text

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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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

-21-

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

-22-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0246%3A2. Public record. Not legal advice.