Petition for Writ of Certiorari — Loretto v. Group W Cable, Inc.

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* die oN, one i if I, ED

SN 1988

IN THE JOSEPH F. SPANIOL, JR,

CLERK

Supreme Court of the United States

OctToBer TERM, 1987

JEAN LORETTO, on behalf of herself

and all others similarly situated,

Plaintiff-Petitioner,

Vv.

GROUP W CABLE, INC. and CITY OF NEW YORK,

Defendants-Respondents,

— and —

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Intervenor-Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE DIVISION, FIRST

DEPARTMENT, OF THE SUPREME COURT

OF THE STATE OF NEW YORK

MICHAEL S. GRUEN

GRUEN, MUSKIN & THAU

Attorneys for Petitioner

500 Fifth Avenue

New York, New York 10110

(212) 921-0844

(a) Question Presented:

Whether a plaintiff who has

obtained a determination of the United

States Supreme Court (reversing all hold-

ings of the New York State Courts) that

installation of cable television equip-

ment on private property under authority

of State law constitutes a taking re-

quiring just compensation (Loretto v.

Teleprompter Manhattan CATV Corp., 458

U.S. 419), and who has won additional

relief following remand, is entitled to

an award of attorneys' fees and costs

under 42 U.S.C. § 1988 against all oppos-

ing parties?

(b) Parties:

The parties are as set forth in

the caption. Teleprompter Manhattan CATV

Corp. and Teleprompter Corporation were

merged into Group W Cable, Inc. resulting

in a change in title of the action in

1965.

The Attorney General intervened

at the Court of Appeals level (first

appeal) and filed a brief with this Court

as amicus.

and Table of Authorities:

Table of Contents

Page

(a) Question Presented a. ‘ 1

(b) Parties ..., * €¢. © leneelee eee 1

Table of Authorities . ee ee es 2

(ad) Prior Reported Opinions ... ‘ 6

(e) Jurisdiction... as a ae 7

(f£) Statute Involved 9

(g) Statement of Case ee ee are 9

(h) Raising of Questions Below. . . 20

(i) Argument: Plaintiff Is

Entitled to Fees ... ee 21

CONCLUSION . .. ., ©. * i eS 43

tits ite

APPENDIX

(with table of contents) ..... A (i)

Table of Authorities

Cases Page

Bagby v. Beal,

SUS F.2a 411 (3d Cir. 1979) .. 37

Bradley v. Richmond School Board,

416 U.S. 696, 94 S.Ct. 2006,

40 L.Ed.2d 476 (1974) .... . 35,

City of Riverside v. Rivera,

477 U.S. 561, 106 S.Ct. 2686,

91 L.Ed.2d 466 (1986) ..... 41

Dean v. Civiletti,

670 F.2d 99 (8th Cir. 1982) ore

DiFilippo v. Morizio,

fee Bene ae, (2446 Cir. 1985) .. 4]

Fast v. School District of

City of Ladue,

728 F.2d 1030 (8th Cir. 1984)

Pre: 2 « » « » «© « « « + 36037

First Evangelical Church v.

County of Los Angeles,

482 U.S. - aur £.Ct. 2378,

7@ &.8G.2G0 250 (1987) ...-.e 12

Hanrahan v. Hampton,

446 U.S. 754, 100 S.Ct. 1987,

64 L.Ed.2d 670, reh'g denied,

S60 Uso. Sid, 103 S.Ct. 33,

SS L.Ed.2d 1177 (1980) ..... 34,

-4-

Hensley v. Eckerhart,

461 U.S. 424, 103 S.Ct. 1933,

76 L.EG.2d 40 (1983) .... 22-23,

35-36

Hewitt v. Helms,

482 U.S. , 107 S.Ct. 2672,

96 L.Ed.2d 654 (1987) . 26, 34,

37, 42

Hodel v. Irving,

481 U.S. , 107 S.Ct. 2076,

95 L.Ed.2d 668 (1987) ... . 12

Interstate Circuit, Inc. v.

City of Dallas,

390 U.S. 676, 88 S.Ct. 1298,

20 L.Ed.2d 225 (1968) .. ° 9

James v. Stockham Valves

and Fittings Co.,

559 F.2d 310 (5th Cir. 1977) e 26

Loretto v. Teleprompter Manhattan

CATV Corp.,

53 N.Y.2d 124, 440 N.Y.S.2d

Tee et} Sere ete ey sees ok ae

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419, 102 S.Ct. 3164,

73 L.Ed.2d 868 (1982) ..41, 11, 31

Loretto v. Teleprompter Manhattan

CATV Corp.,

58 N.Y.2d 143, 459 N.Y.S.2d

| 743 (1983), rearg. denied,

59 N.Y.2d 761, 463 N.Y¥.S.2d

1030 (1983) . -« « « « » « « Ad, 24N,

25n, 31-32

Mantolete v. Bolger,

79i F.2d 784 (9th Cir. 1986) 36

Mills v. Electric Auto-Lite Co.,

3396 U.S. 373, 30 S.CE« 616,

24 L.Ed.2d 593 (1970) ~ oy 206 ee

Nephew v. City of Aurora,

830 F.2d 1547 (10th Cir.

1987) (en banc), cert.

denied, U.S. , 108

S.Ct. 1269, 99 L.Ed.2d

463 (i3GG! « « « & © 6 Wd eee

New York City Unemployed and

Welfare Council v. Brezenoff,

742 F.2d 718 (20 Cir. 1984) .. 36

Nollan v. California State

Coastal Comm'n,

483 U.S. , 107 S.Ct. 3141,

97 L.Ed.2d 677 (1987) ‘+84 be ee

Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air,

478 U.S. __, 106 S.Ct. 3088,

32 L.EG.24G 439 (i966) « @ a's = aan

Robinson v. Kimbrough,

652 F.2d 458 (5th Cir. 1981) .. 33

Skoda v. Fontani,

646 F.2d 1193 (7th Cir. 1980),

on remand, 519 F. Supp. 309

(N.D. Ill. 1981) - & «

Spano v. Simendinger,

613 F. Supp. 124

(S.D.N.Y. 1985)

United States v. Security

Industrial Bank,

453 U.5. /0, 78, 103 8.€t.

407, 74 L.Ed.2d 235 (1982)

Webb v. Board of Education,

U.S. P s.CcCt. 1923,

85 L.Ed.2d 233 (1985) «++: > 24n

Williamson County Regional Planning

Commission V. bent tton Bank,

473 U.S. ld, 105 S.ct. 3108,

87 L.Ed.2a 126 (1985) . 27, 28, 29

Statutes and Regulations

28 U.S.C. § 12857 ~ «© ee © se © © s *& 8 8

42 U.S.C. § 1988 . +++ +e: Ae passim

New York's Executive

Law § 828 . .+-+e+es-s 10, 14, 28, 29,

30, 31, 32, 33

9 NYCRR § 598.5 . + +++ 2* 2* © * * * 14

+her Authorities

S. Rep. No. 94-1011 reprinted

in 1976 U.S. Code Cong. &

Ad. News 5908, 5910 . - «+ + + * + » 23

(a) Prior Reported Opinions:

(i) Loretto v. Teleprompter Manhattan

CATV Corp., 98 Misc. 2d 944, 415

N.¥.S.2a@ 180 (Sup. Ct. N.Y. Co.

1979), aff'd without Op., 73 A.D.2d

849, 422 N.Y¥.S.2d 550 (lst Dep't

1979).

(11)

(111)

Loretto v. Teleprompter Manhattan

CATV Corp., 53 N.Y.2dad 124, 440

N.Y¥Y.S.2d 843 (1981).

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419,

3164, 73 L.Ed.2d 868 (1982).

Loretto v. Teleprompter Manhattan

CATV Corp., 58 N.Y.2d 143, 459

N.Y¥.S.2d 743 (1983), rearg. denied,

Lorettc v. Group W. Cable, —_

A.D.2d , 522 N.Y.S.2d 543 (lst

Dep‘t 1987)

(e) Jurisdiction

Review is sought of the Orders of

the New York State Supreme Court,

Appellate Division, First Depart-

ment, entered December 15, 1987

(A-18) and Februar lO, 1987

(A-21). In the Order of

(ii)

(iii

December 15, the Court granted

reargument and adhered to its Feb-

ruary 10 decision but its opinion

(A-1) altered the basis of the

decision.

An order of the New York State

Court of Appeals denying Plain-

tiff's motion for leave to appeal

to that Court was entered March 24,

1988. (A-84).

This Court has jurisdiction to

review the judgment by writ of

certiorari pursuant to 28 U.S.C.

§ 1257 as review is sought of the

final judgment or decree of the

highest State Court in which a

decision could be had where a ti-

tle, right or privilege was spe~

cially set up or claimed under 42

U.S.C. § 1988. The Appellate Divi-

sion is the highest State Court in

which a decision could be had as

aia

when cable television companies, acting

under authority of New York's Executive

Law § 828(i)(b), install cable and relat-

ed equipment on private property without

the owner's consent. Section 828

generally authorizes such installations;

subsection (i) (b) prohibits landlords

from demanding or accepting any compen-

sation with respect to such installations

"in excess of any amount which the com-

mission [on cable television] shall, by

regulation, determine to be reasonable."

The New York Court of Appeals definitive-

ly interpreted this provision as granting

the Commission the right to award or

withhold compensation in its unfettered

discretion. The Court of Appeals also

held that no taking had occurred under

Section 828 as that statute did no more

than reasonably restrict property rights

under the police power. Loretto v. Tele-

prompter Manhattan CATV Corp.,«:. 53 N.%.2a

silts

124, l37¢138, 151, 440 N.¥.8.26 863,

848-849, 857 (1981).

On appeal this Court reversed,

holding that Teleprompter's conduct con-

stituted a taking for which just compen-

sation is required under the taking

clause of the Fifth Amendment incorporat-

ed by the Fourteenth Amendment. (458

Vine 423) This Court remanded to the

New York Court of Appeals to consider

"[t]he issue of the amount of compen-

sation that is due." (458 U.S. at 441).

This Court's decision was semi-

nal in that it confirmed, for the first

time after many decades of analyzing

property rights cases purely in terms of

balancing competing interests, that a

continuing physical occupation of private

property, no matter how slight, consti-

tutes a taking on a per se basis. The

decision is frequently cited and has been

relied upon by this Court in its

subsequent cases supporting private prop-

erty rights. see, e@.g., Nollan vy.

California State Coastal Comm'n, 483 U.S.

» 207 S.Ct. 3141, 97 Libasaa 677

(1987) 3 First Evangelical Church vy.

County of Los Angeles, 482 U.S. , 107

S.Ct. 2378, 96 L.Ed.2d 250 (1987); Hodel

vV. irvine, .482°.0.8. » £07 B.0C. 2078,

95 L.Ed.2d 668 (1987) (Stevens, J., con-

curring); United States Vv. Security

Industrial Bank, 459 U.S.-70, 103 S.Ct.

407, 74 L.Ed.2d 235 (1982).

On remand, the Court of Appeals

determined that compensation should be

set in the first instance by the New York

State Commission on Cable Television,

subject to judicial review. The Court

also declared invalid as a deprivation of

due process the Commission's regulation

establishing a 60 day statute of limita-

tions for owner applications for compen-

Sation, but omitting any provision for

O the owner.

viously ter

vnc

4iod

was invalidated,

Because the statu

minated rights of thousands of

obtain compensation were r

1 addition, the Court of

peals substantially broadened th

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could recover compensation

Commission by reinterpreti

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les and to cover cross-over j

ions (those crossing over ¢

1es on which they are installed

other properties) as well as pu

Ssover installations (those se

Oniy the property on which ther

Stalled). fee N.Y.2d +143, 4

d 743). Having ruled that compe

Should be set by the Commissic

rt of Appeals affirned the Oorlg

missal of the complaint excep}

wit-«

of the lower court to award trespass dam-

ages as to a ten-month period prior to

the effective date of Section 828.

As a result, the State Commis-

sion adopted a new statute of limitations

running from the date on which the cable

company gives formal notice to the owner

of his rights (or the date of installa-

tion if notice is given earlier) (9 NYCRR

*S 596.5), as well as numerous’) other

changes to conform to the rulings of this

Court and the Court of Appeals. Since

Group W has evidently made a practice of

not giving notice to owners except in the

few instances where the company has made

new installations, the statute of limita-

tions has not even begun to run in most

cases. (Appellant's Reply Br. in App.

. The Commission has-~ recently (on

April 11 and 14, 1988) decided five owner

compensation cases. In two cases, it

[fn continued on next page]

Because all class action and

Civil Rights Act aspects of the complaint

had been dismissed, the only recourse

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available to iers was

through the Commission. Counsel for

Plaintiff concluded that an effective

presentation to the Commission, including

expert testimony, would be extremely

[fn continued from preceding page]

awarded $150 and $400 -- amounts approxi-

mating the amounts Plaintiff had sought

for individual owners. In two others,

the Commission denied the non-monetar

relief which had been requested but a]

lowed time for a reapplication for a

monetary award above $1. In all five

cases, the Commission granted $1 for the

basic taking. However, it explained the

two additional larger awards as being for

a “temporary excessive taking" consisting

of the occupancy of more physical space

than was actually required for the in-

stallation. The Commission offered no

explanation for its somewhat unusual ree

that space necessary for an installatio

is oe less than space which is ae

necessary for the installation and that

compensation for permanent use should be

less than that for temporary use.

These awards came after all action

of the New York Courts. It is clear that

the awards would not have affected the

hat

Appellate Division's holding sin

[fn continued on next page]

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expensive and could probably not be pur-

sued on a class basis within the admini-

strative agency. Counsel therefore de-

termined to seek compensation for their

services to date (time-charges and dis-

bursements to that point having come to

some $466,000) before proceeding further.

An application for counsel fees

was made to Special Term of the Supreme

Court, New York County, in early 1985.

Special Term determined that Plaintiff

was entitled to counsel fees under both

42 U.S.C. § 1988 and New York's class

action statute, but declined to make any

award at the time on the ground that, in

[fn continued from preceding page]

Court's rationale was that Plaintiff can

never "prevail" unless she herself first

unsuccessfully applies to the Commission.

The successful applications of others

would merely reinforce the Appellate

Division's belief that the statute pro-

vides a sufficient remedy for obtaining

just compensation and, therefore, Plain-

tiff has not been deprived of any con-

Stitutional right. (See pages 27-33

below).

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should be denied so that Plaintiff would

be financially unable to pursue adminis-

trative proceedings to obtain compen-

sation and this Court's directive to

provide owner compensation would effec-

tively be defeated -- the Appellate Divi-

sion issued an opinion absolutely denying

fees on the sole ground that Plaintiff

had not “prevailed." (A-1).

The Appellate Division's thesis

was that, in order to prevail on a taking

claim, a plaintiff must show both that

there was a taking and that the plaintiff

had been denied compensation. The Appel-

late Division acknowledged that this

Court had found a taking, but asserted

that Plaintiff had never been denied

compensation as she had not applied for

compensation after this Court had found

[fn continued from preceding page]

Appellate Division in Support of Group

W's Cross-Motion for Leave to Appeal,

p. 6.

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precedent are unavailable. Secondly, the

case offers a vehicle for more precise

@efinition of two important concepts:

(i) what constitutes a Section 1983 cause

of action and (ii) what constitutes “pre-

vailing" on it so as to be entitled to

fees under Section 1988. Thirdly, the

case presents the issue of whether Plain-

tiff is entitled to an interim award of

fees in a protracted litigation once she

has achieved success, even if the success

is deemed to be only at an interim stage.

(A)

In Civil Rights Act actions,

the recovery of attorneys’ fees by the

prevailing party is allowed as a matter

of course in order to encourage private

parties to vindicate constitutional

rights. Hensley v. Eckerhart, 461 U.S.

424, 429, 103 $§.Ct. 1933, 1937, 76

~Ii=

liable for attorneys' fees)” and prose-

cuting that at whatever cost, and over

however many years, and through however

many appeals, it may vequive.

The Appellate Division's

decision must inevitably chill any

- The availability of attorneys' fees

in administrative proceedings ancillary

to judicial actions in which fees are

available has been the subject of rela-

tively few decisions with diverging re-

sults. Cis Webb v. Board of Education,

471 U.S. 234, 105 S.ct. 1923, 85 L.Ed.2c

233 (1985) (denying fees for work on

optional administrative proceeding pre-

ceding court action), and Pennsylvania v.

Delaware Valley Citizens' Council for

Clean Air, 478 U.S. __, 106 S.Ct. 3088,

92 L.bd.ca 439 (1986) (awarding fees for

administrative enforcement efforts fol-

lowing court proceedings).

adi The Commission itself functions at a

snail's pace. It took over three years

after the effective date of Executive Law

§ 828 for the Commission to adopt its

Statement of General Policy incorporating

its one dollar one-time payment notion of

"fair" compensation. It then took 1 1/4

years after the Court of Appeals referred

the issue of compensation to the Commis-

sion (58 N.Y.2a 143, 459 N.Y.S.2d 743

(1983)), for the Commission to promulgate

regulations governing the procedure for

making such applications, including

[fn continued on next page |

eee

inclination to utilize the courts of the

State of New York for the vindication of

constitutional rights on behalf of the

disadvantaged. Where the prospective

economic benefit to any individual plain-

tiff is small, it becomes unthinkable to

contemplate expending the time and money

required for a round trip (or two) to the

United States Supreme Court. As the

Fifth Circuit said in another case which

took 11 years for liability to be estab-

lished, leaving the remedy still to be

determined,

There is a danger that litigants

will be discouraged from bringing

(fn continued from preceding page]

complying with the Court of Appeals' man-

date to revise the invalid 60 day statute

of limitations. Only in April 1988 did

the Commission finally render its first

five post-Loretto decisions on landlord

compensation, some five years after the

Court of Appeals directed the Commission

to make initial compensation decisions

(58 N.Y.2d 143, 459 N.Y.S.2d 743 (1983)).

The Commission's written decisions were

issued as much as ten months after its

minutes reflect that it had ruled on the

cases.

such suits because of the risks of

protracted litigation and _ the

extended financial drain repre-

sented by such a risk. (James v.

Stockham Valves and Fittings Co.,

559 F.2d 310, 358 (5th Cir.

1S77}}

In the end, with their de-

cisions in this case, the New York courts

have effectively frustrated the ability

of property owners to obtain the compen-

sation this Court said was their due, and

have strongly inhibited the prosecution

of Civil Rights Act claims in that State.

(B)

This Court has recently sug-

gested that "[w]hatever the outer bound-

aries of [the] term ['prevailing party']

may be" presents an = open question.

Hewitt v. Helms, 482 U.S. , 107 SCS.

2672, 2675, 96 L.Ed.2d 654, 661 (1987).

We do not suggest that this is

an “outer boundaries" case. It is, how-

ever, a case in which this Court can

provide immeasurably useful guidance to

New York and other courts concerning what

constitutes a Section 1983 cause of

action and at what point a Civil Rights

Act plaintiff "prevails."

(i)

The key issue here is the Ap-

pellate Division's misapplication of

Williamson County Regional Planning Com-

mission v. Hamilton Bank, 473 U.S. 172,

105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)

(holding that a Civil Rights Act cause of

action for a taking requires a showing of

both a taking and a denial of just com-

pensation), and its blatant textual re-

vision of the Court of Appeals' ruling on

remand so as to deprive Plaintiff's coun-

sel of compensation. The essence of the

Appellate Division's holding is’ that

ff never stated a Section

}--

Plaint

oe |

satisfied only one part of Williamson's

two-pronged test: she established that

there was a taking, but not that she had

been denied compensation. The Appellate

Division reasoned that, because the Court

of Appeals reinterpreted Section 828

after this Court's ruling as providing an

adequate procedure for obtaining compen-

sation, the procedure had been available

all along and Plaintiff cannot have been

denied compensation until she unsuccess-

fully seeks it from the Commission.

The resulting denial of counsel

fees was achieved through post hoc inter-

pretative legerdemain. The Appellate

Division suggests that Section 828 always

provided a remedy for securing just com-

pensation since this Court "specifically

left open whether § 828 provided plain-

tiff a sufficient avenue to obtain com-

pensatory relief" (A-7), and the Court of

Appeals, on remand, concluded that it

did. In fact, however, the Court of Ap-

peals, in its first decision, conclusive-

ly held that Section 828 did not require

that compensation be paid at all and the

legislature did not intend any such re-

quirement. And there can be no doubt

that this Court did not remotely suggest

that it was second-guessing the Court of

Appeals' interpretation of the New York

statute.

The reasoning of the Court of

Apyeals demonstrates that Plaintiff

Clearly had no administrative or judicial

remedy for obtaining just compensation

prior to this Court's decision. There-

fore, when she was denied compensation by

the New York Courts, she had satisfied

the second part of the Williamson test.

ourt of Appeals held that Plaintiff

1d not have tc exhaust administrative

remedies before bringing this action (by

applying to the Commission for just

= Fih—

compensation) because Section 828 was

enacted purely under the police power --

not under the eminent domain power:

The fact that section 828 (subd l,

par b) of the Executive Law...

imposes an upper limit upon the

amount that may be demanded or

accepted by a landlord from a

cable television company rather

than a requirement that such a

company pay compensation to a

landowner .. . leads us to con-

clude that the Legislature in

enacting article 28 of the Execu-

tive Law, in which section 828 is

contained, intended to act under

the police power only... . (53

N.Y¥.2d at 138, 440 8.%.8.24 at

849).

Thus, Plaintiff did not have an adminis-

trative remedy for securing eminent do-

main compensation when she brought suit.

Later in the opinion, the Court

of Appeals made the following observa-

tion:

That, as stated in [the quotation]

above the Legislature imposed no

requirement for compensation makes

unnecessary our consideration of

many of the eminent domain argu-

ments advanced by plaintiff. (53

N.¥.2@ at i143, 480 B.%.¢.40 Gt

852).

suggest

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amount

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tion

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intend

been invalidated by the Supreme

Court's holding, the question

becomes whether the language of

the statute admits of a con-

struction which provides a method

of compensation for crossover and

noncrossover situations. We con-

clude that it does. (58 N.Y.2d at

149, 459 N.Y.S.2d at 747; A-58;

emphasis in original).

Thus, the Court of Appeals acknowledged

that its earlier interpretation of Sec-

tion 828 did not afford a remedy for

taking compensation and that it was re-

versing its interpretation to provide

such a remedy.

In this case, fees were denied

simply because an administrative remedy

has since been created where none previ-

ously existed. This denial of fees can-

not be said to be merely the wages of

failure which any Civil Rights attorney

takes the risk of. Up until the remand

to the Court of Appeals, there was a law,

confirmed by the Court of Appeals

tial decision on the merits, that no

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of action, the question of whether she

has “prevailed” still remains. This

Court has decided relatively few cases on

this subject. Most recently, it de-

termined in Hewitt v. Helms, 482 U.S.

__, 107 §.Ct. 2672, 96 L.Ed.2d 654

(1987), that an interlocutory success in

maintaining the validity of a cause of

action does not suffice if the cause of

action is still subject to dismissal upon

trial or later motion.

In Hewitt, the Court cited

Hanrahan v. Hampton, 446 JU. 757,

100 S.Ct. 1987, 1989, 64 L.Ed.2d 670,

674, reh'g denied, 448 U.S. 913, 101

S.Ct. 33, 65 L.Ed.2d 1177 (1980), for the

proposition that "(rjespect for ordinary

language requires that a plaintiff re-

ceive at least some relief on the merits

of his claim before he can be said to

prevail.” (107 S.Ct. at 2675, 96 L.Ed.2d

at 661). Whether “some relief on the

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On a third level, one may ask

whether Plaintiff, who has completed the

full judicial cycle and obtained all

relief available through the courts,

should be required to go through a sepa-

rate administrative proceeding to fix

compensation before her application for

attorneys' fees may be considered ripe.

If one views each step as discrete, then,

quite obviously, Plaintiff has already

prevailed to the maximum possible extent.

If one views hoth steps together as parts

of a total process, then the question

becomes whether Plaintiff is entitled to

an interim award upon achieving victory

on major elements of the claim even

though the amount of compensation remains

to be determined.

The Appellate Division rejected

the concept of an interim award. That

«39—

rejection violates the teaching of the

major authorities on the issue. This

Court has declared in Bradley v. Richmond

School Board, 416 U.S. 696, 723, 94 S.Ct.

2006, 2022, 40 L.Ed.2d 476, 495 (1974),

that "[t]o delay a fee award until the

entire litigation is concluded would work

substantial hardship on plaintiffs and

their counsel Fees are, there-

fore, awardable on an interim basis when

the plaintiff has achieved substantial

success on the merits, such as by estab-

lishing liability, even though damages

are left to be fixed and may be minimal

Or non-existent. Bradley, supra; Mills

v. Electric Auto-Lite Co., supra. Cf.

Hanrahan v. Hampton, 446 U.S. 754, 100

S.Ct. 1987, 64 L.Ed.2d 670, reh'g denied,

448 U.S. 913, i014 S.Ct. 33, 65 1.84.24

1176 (1980) (reversing an interim award

of fees on the ground that the plaintiff

had not yet established liability).

=40-

Here, Plaintiff has won the

basic constitutional principle -- that a

taking has occurred requiring the payment

of just compensation -- and has won cer-

tain substantive relief absolutely, for

example, the enlargement of the statute

of limitations restoring the rights of

some 16,000 class members to _ pursue

claims. There remains, however, the

highly theoretical and remote possibility

that the Commission would award only

nominal compensation and that the courts

would sustain such an award. But that

possibility is irrelevant: appellate

courts have rather consistently sustained

very large attorneys' fee awards on small

Or non-existent damages awards so that,

even if Plaintiff ultimately recovers

little compensation, counsel would still

* Again, the Commission has, in fact,

made significant monetary awards. See

footnote, pages 14-16, supra.

= >

be entitled to substantial fees. See,

e.g., City of Riverside v. Rivera, 477

Use. 261, 106 S.Ct. 2686, 91 L.Ed.2d 466

(1986) ($245,456.25 in fees on a judgment

of $33,350):

Regardless of the form of relief

he actually obtains, a successful

Civil rights plaintiff often se-

cures important social benefits

that are not reflected in nominal

or relatively small damages

awards. (477 U.S. at 574).

* * * *

A rule of proportionality would

make it difficult, if not impossi-

ble, for individuals with merito-

rious civil rights claims but

relatively small potential damages

to obtain redress from the courts.

(477 U.S. at 578).

see also DiFilippo v. Morizio, 759 F.2d

231 (2d Cir. 1985) ($27,832.82 fees;

a If one were to conclude that a mini-

mal compensation award would diminish the

amount of fees to which Plaintiff's coun-

sel would be entitled, it would be far

more appropriate to grant an interim fee

award reflecting the minimum amount to

which counsel would be entitled (subject

to later upward adjustment) than ts deny

fees altogether.

$2,250 damages); Skoda v. Fontani, 646

F.2d 1193 (7th Cir. 1980), on remand, 519

F. Supp. 309 (N.D. Ill. 1981) ($6,086.12

fees; $1 nominal damages); Nephew v. City

of Aurora, 830 F.2d 1547 (10th Cir. 1987)

(en banc), cert. denied, _ U.S. P

108 $.Ct. 1269, 99 L.E@.2a 481 (1988)

($12,500 fees; $1 nominal damages); Dean

v. Civiletti, 670 F.2d 99 (8th Cir. 1982)

(reasonable fees required; $1 nominal

damages); Spano v. Simendinger, 613 F.

Supp. 124 (S.D.N.Y. 1985) ($62,078.21

fees; $2,250 damages).

The question of the parameters

of the Hewitt v. Helms decision again

comes into play. To the extent that it

suggests that the plaintiff must person-

ally realize some substantial direct

benefit from the litigation in order to

be entitled to fees, does it qualify the

right to interim awards authorized by

this Court in Bradley v. Richmond School

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February 17, 1983 .

(f) Order thereon,

February 17, 1983 .

(g) Order and Judgment

of Special Term on

Remittitur, July 1l,

1983 .. «+e «6 «

(h) Order of Court of

Appeals denying

motion for leave

to appeal, March 24,

1988 ses

Judgment to be reviewed,

etc. see (i) (b) and (c)

ther materials:

(a) Excerpt f

Plaintiff's m

to Court of

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of the appealed order denying as “prema-

ture” plaintiff's motion to recover

attorneys’ fees. The order had been

affirmed without opinion.

In passing upon the motion, Special

term held that the plaintiff “must be

deemed a prevailing party" within the

meaning of 42 USC § 1988 and that as 4

prevailing party, plaintiff might even-

tually be entitled to an award of attor-

neys’ fees to be assessed against de-

fendants and the intervenor. Plain-

tiff’s motion for a fee award was denied

only because, in the court’s view, the

impact of plaintiff’s lawsuit could not

yet be evaluated. In view of its ruling

that attorneys’ fees would eventually be

proper under 42 usc § 1988, the court

found it unnecessary to reach the ques-

tion of whether attorneys’ fees might

also be awarded pursuant to CPLR 909.

menced by the plaintiff in 1976. Plain-

tiff alleged that she had sustained some

$1 million in damages as a result of

defendant cable television company’s

installation upon the roof of her prem-

ises certain equipment necessary to

provide cable TV service to one of her

tenants and to tenants in adjoining

buildings. She also alleged that de-

fendant’s use of her premises for its

equipment, purportedly authorized by

section 828 of the Executive Law, con-

stituted a taking of her property with-

out just compensation, and that she had

been deprived of her property without

due process of law. Initially, plain-

tiff’s complaint was dismissed by Spe-

cial Term which held on summary judgment

that defendant’s installation of its

cable facilities on petitioner’s build-

ing was indeed authorized by Executive

Law § 8281 and that such law was a valid

exercise of the state’s police power.

1 Executive law § 828 provides in

relevant part:

No landlord shall

a. interfere with the in-

Stallation of cable television

facilities upon his property or

premises, except that a land-

lord may require:

p that the installation of

cable television facilities

conform to such reasonable

conditions as are necessary to

protect the safety, functioning

and appearance of the premises,

and the convenience and well-

being of other tenants;

a ae that the cable television

company or the tenant or a

combination thereof bear the

entire cost of the installa-

tion, operation or removal of

such facilities; and

iii. that the cable television

company agree to indemnify the

landlord for any damage caused

by the installation, operation

or removal of such facilities.

b. demand or accept payment

from any tenant, in any form,

in exchange for permitting

(Footnote 1 continued on next page)

This Court affirmed as did the Court of

Appeals which, in essence, held that

Executive Law § 828 did not authorize

such interference with petitioner’s

property rights as would amount to a

taking. (Loretto v. Teleprompter CATV,

53 NY2d 124, 151). The United States

Supreme Court reversed upon the "the

very narrow holding" that the “otherwise

valid regulation so frustrates property

rights that compensation must be paid."

(Loretto v. Teleprompter CATV, 458 U.S.

419, 425-426, 441). On remand, the Court

of Appeals, noting that the Supreme

(Footnote 1 continued from previous page)

cable television service on or

within his property or premi-

ses, or from any cable tele-

vision company in- exchange

therefor in excess of any

amount which the commission

shall, be regulation, determine

to be reasonable.

Court had not questioned the validity of

Executive Law § 828 as an exercise of

the state’s police power, and that the

Court had specifically left open whether

§ 828 provided plaintiff a sufficient

avenue to obtain compensatory relief,

went on to hold that § 828 did in fact

provide a means for plaintiff to obtain

just compensation as it permitted plain-

tiff to submit a claim for reasonable

compensation to the State Commission on

Cable Television. (See Executive Law

§ 828[1][b]). The Court of Appeals

although leaving intact the dismissal of

the original complaint retained juris-

diction over the matter to review wheth-

er the compensation fixed by the Commis-

Sion constituted just compensation with-

in the meaning of the Constitution

(Loretto v. Teleprompter CATV, 58 NY2d

143).

Neither plaintiff nor any other

landlord in the putative class certified

in this action has, since the Court of

Appeals’ February, 1983 remand decision,

made application to the Cable Commission

for reasonable (now referred to in the

Commission regulations as "just") com-

pensation. Instead, plaintiff in Decem-

ber, 1984 filed the present motion to

recover more than half a million dollars

in attorney’s fees from the defendants

and the intervenor. Plaintiff sought

this recovery on the ground that she was

the prevailing party in a civil rights

action and so was entitled to attorneys’

fees pursuant to 42 U.S.C. §§ 1983 and

1988. 42 USC § 1988 provides:

"In any action or proceeding to

enforce a provision of sections

1981, 1982, 1983, 1985, and

1966 [sic] of this title, title

IX of Public Law 92-318, or

title VI of the Civil Rights

Act of 1964, the court, in its

discretion, may allow the pre-

vailing party other than the

United States, a reasonable

attorney’s fee as part of the

costs" (emphasis added).

Plaintiff also sought to recover attor-

neys’ fees pursuant to CPLR 909 which

provides:

R 909. Attorneys’ fees.

If a judgment in an action

maintained as a class action is

rendered in favor of the class,

the court in its discretion may

award attorneys’ fees to the

representatives of the class

based on the reasonable value

of legal services rendered and

if justice requires, allow

recovery of the amount awarded

from the opponent of the class.

To state a claim as a "prevailing

party" for attorneys’ fees under 42 USC

§ 1988 plaintiff who relies upon 42 USC

§ 1983 must first demonstrate that she

has been deprived of a federal right

under color of state law (42 USC § 1983;

Gomez Vv. Toledo, 446 US 635, 640

(1980]); Annunziato _v. The Gan, Inc.,

744 F.2d 244, 250 [2d Cir., 1984]). It

ought to be clear that plaintiff cannot

now establish the deprivation of any

federal right. Although plaintiff has

established that defendant cable company

took her property under color of state

law, that alone does not mount to the

deprivation of a right. Plaintiff has

not shown that her property has been

taken without just compensation or due

process, and, thus has not demonstrated

that the taking which was itself author-

ized pursuant to a decidedly unob-

jectionable exercise of the state’s

police power (458 US 419, 425-426) was

effected in a manner violative of her

federal rights. As the U.S. Supreme

Court has recently observed, “The Fifth

Amendment does not proscribe the taking

of property; it proscribes taking with-

out just compensation citations omit-

ted)". (Williamson Planning Commission

v. Hamilton Bank, 473 US 172, 194

[1985]). The fact that a taking has

occurred under color of state law is a

necessary condition of plaintiff’s 42

USC § 1983 claim, but it is not in it-

self sufficient to sustain the claim.

Until plaintiff applies for just compen-

Sation, utilizing the procedures there-

for set forth in the Executive Law and

regulations promulgated pursuant there-

to, and is denied the compensation she

seeks she is not in a position to allege

sufficiently, much less prove, the de-

nial of any federal statutory constitu-

tional right. The Supreme Court has

observed quite pointedly: “because the

Fifth Amendment proscribes takings with-

out just compensation, no constitutional

violation occurs until just compensation

has been denied. The nature of the

constitutional right therefore requires

that a property owner utilize procedures

for obtaining compensation before bring-

ing a § 1983 action." (emphasis in

original). (Id. at 194 n. 13; see also

Id. 194-195).

The conclusion which follows is that

plaintiff, who to date has not utilized

the procedures to obtain compensation

which have existed in substantially the

form they doe today since the enactment

of Executive Law § 828 in 1972, cannot

now make a § 1983 claim. If she cannot

make a § 1983 claim, neither may she

seek attorneys’ fees as a “prevailing

party” pursuant to 42 USC § 1988. Thus,

it was error for Special Term to hold

that plaintiff was a “prevailing party”

within the meaning of 42 USC § 1988.

The motion should simply have _ been

denied on the ground that plaintiff

failed to plead and prove any underlying

constitutional violation.

As there presently exists no ground

to believe that there will be an award

of attorneys’ fees pursuant to 42 USC

§§ 1983 and 1988 in this action, it is

necessary to address plaintiff’s alter-

native claim for a fee award pursuant to

CPLR 909.

Although a class was certified in

this action and the action has been

referred to as a class action, the ac-

tion has not been maintained as such; no

notice was ever sent the class. More-

over, the outcome of plaintiff’s 11 year

effort is that plaintiff and the members

of her putative class are consigned to

essentially the same process for obtain-

ing compensation as has existed ever

Since the enactment of Executive Law

§ 828. Unless, as seems altogether

improbable, it is eventually judicially

determined that the very minimal compen-

sation landlords stand to receive under

the Executive Law § 828 compensatory

scheme (in most cases $1.00) does not

amount to just compensation within the

meaning of the constitution, plaintiff

will not have succeeded in conferring

any tangible benefit upon the putative

class. At this juncture in the litiga-

tion petitioner has prevailed in no more

than establishing that the activity

authorized by Executive Law §828 does

constitute a taking. This, however, is

of purely academic interest since, as a

practical matter, there is little reason

to believe that landlords will receive

any greater amount in what is now deno-

mMinated “just compensation“ than they

would have previously in what was then

termed “reasonable compensation". As

Justice Blackmun perceptively noted in

his dissent when this matter was before

the U.S. Supreme Court, “If, after the

remand following today’s decision, this

minor physical invasion is declared to

be a taking deserving little or no com-

a large expenditur of judicial re-

456 ftn. 12). We do not think CP

is correctly used to finance, and there-

by encourage, the litigation of claims

which have proven as insubstantial as

those here made by the plaintiff. The

motion for attorneys’ fees pursuant to

CPLR 909 should then have been denied by

Special Term for the aforestated

reasons.

: ;

A-16

We note that even if attorneys’ fees

were eventually to be awarded pursuant

to CPLR 909 they would be properly paya-

ble out of the judgment fund, if any,

that resulted from the lawsuit. Justice

does not require (See CPLR 909 supra)

that plaintiff’s adversaries, who have

at all times acted in good faith, (See

Loretto v. Teleprompter Manhattan CATV

Corp., 58 NY2d 143, 153) should be

forced to pay plaintiff’s attorneys.

Thus, assuming that this action should

be permitted to continue as a class

action -- a doubtful proposition con-

sidering that the original complaint has

been dismissed and that the Court of

Appeals has approved the administrative

procedures pursuant to which each land-

lord may seek compensation on an in-

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applicants.

At a term of the Appellate

Division of the

Supreme

Court held in and for the

First Judicial Department

in the County of New York,

on December 15,

Present - Hon. Francis T. Murphy,

1987.

Presiding Justice,

Leonard H. Sandler,

E. Leo Milonas,

Ernst H. Rosenberger,

George Bundy Smith,

JEAN LORETTO, on behalf of

herself and all others

similarly situated.

Plaintiff-

Appellant-Respondent,

-against-

GRUUP W. CABLE, INC. and

CITY OF NEW YORK.

Defendants-

Respondents-Appellants,

Attorney General of the State

of New York,

Intervenor-Respondent.

Justices.

M-1120

M-1491

M-1526

M-1546

[Appeal

Nos.

29128-

29N]

The above-named plaintiff-appellant-

respondent having moved for reargument

or leave to appeal to the Court of

Appeals from this Court’s order entered

on February 10, 1987,

And the defendants-respondents-

appellants and intervenor-respondent

having each cross-moved for leave to

appeal to the Court of Appeals from said

order of this Court,

Now, upon reading and filing the

papers with respect to the motion and

cross-motions and due deliberation hav-

ing been had thereon; and upon the memo-

randum decision of this Court filed

herein,

It is ordered that plaintiff-appel-

lant-respondent’s motion be and the same

hereby is denied.

It is further ordered that’ the

cross-motions for leave to appeal to the

Court of Appeals are hereby granted to

the extent of deeming the cross-motions

as ones for reargument, which are hereby

granted, and upon reargument, the Court

adheres to its determination as _ con-

tained in this Court’s order entered on

February 10, 1987.

ENTER:

/s/ Harold J. Reynolds

Clerk

At a term of the Appellate

Division of the Supreme

Court held in and for the

First Judicial Department

in the County of New York,

on February 10, 1987.

Present - Hon. Francis T. Murphy,

Presiding Justice,

Leonard H. Sandler,

E. Leo Milonas,

Ernst H. Rosenberger,

George Bundy Smith,

Justices.

<< a a a oe om om es om oe oe om oe om es oe oe oe os es we we we oe oe xX

JEAN LORETTO, on behalf of

herself and all others

Similarly situated.

Plaintiff-

Appellant-Respondent,

-against-

GROUP W. CABLE, INC. and 29128-

CITY OF NEW YORK. ;: 29N

Defendants-

Respondents-Appelilants,

Attorney General of the State

of New York,

Intervenor-Respondent.

ee ee ern ee ene ae a

A-22

An appeal and cross-appeal having

been taken to this Court by the above-

named appellants from two orders of the

Supreme Court, New York County (Alfred

Ascione, J.), entered on or _= about

June 28, 1985, and December 13, 1985,

respectively,

And said appeal and cross-appeal

having been argued by Michael S. Gruen

of counsel for plaintiff-appellant-

respondent, by Michael Lesch, John G.

Micolich and George G. Nelson of counsel

for defendant-respondent-appellant Group

W. Cable, Inc., by Pamela Seider Dolgow

and Elizabeth S. Natrella of counsel for

defendant-respondent-appellant City of

New York, and by Judith A. Gordon of

counsel for intervenor-respondent; and

due deliberation having been had there-

on,

It is unanimously ordered that the

order entered on or about June 28, 1985

SO appealed from be and the same hereby

is affirmed, without costs and without

disbursements. The appeal from the

order entered on December 13, 1985 be

and the same hereby unanimously dismis-

sed as nonappealable.

ENTER:

/s/ Harold J. Reynolds

Clerk.

JEAN LORETTO, on behalf of

herself and all others

similarly situated.

Plaintiff, Index No.

8300/76

-against-

#89 of

TELEPROMPTER MANHATTAN CATV 3/13/85

CORP., TELEPROMPTER

CORPORATION and CITY OF

NEW YORK,

Defendants.

Sn eb an i i ae ys i cn: a, ei Sn a as Sa, a a —

ALFRED M. ASCIONE, J.:

Counsel for plaintiff seeks attor-

neys’ fees as well as costs and dis-

bursements against Group W. Cable, Inc.

("Group W", the successor to the Tele-

prompter defendants) as well as New York

City and the State of New York.

The movants acted as counsel for

plaintiff as to this proceeding. They

seek attorneys’ fees pursuant to CPLR

909 and 42 U.S.C.A. 1988. This action

was brought as a class action in regard

to an estimated 16,000 television in-

stallations. The legal battle was car-

ried through the entire New York State

court system up to the Court of Appeals

and then to the United States Supreme

Court. Movants seek almost $1.5 million

in fees plus the vacatur of awards

previously obtained against the plain-

tiff. Movants also move to amend the

caption of the action to reflect the

fact the Teleprompter defendants have

been merged in Group W Cable, Inc.

Plaintiff commenced this proceeding

in 1976 in which she sought damages on

her behalf and on the behalf of other

real property owners in a similar posi-

tion caus#d by what she claimed was an

unconstitutional taking of private prop-

erty on the part of the Teleprompter

defendants by installing cables and

other cable television components with-

out compensation nor consent of the

owners. Plaintiff contends the cables,

etc. were installed pursuant to Execu-

tive Law, § 828. Plaintiff states that

prior to the enactment of § 828 (its

effective date was January 1, 1973), the

cable television companies sought per-

mission before they installed their

equipment and paid the owner 5% of the

gross receipts realized from those in-

Stallations. After § 828 was enacted,

plaintiff charges the State Cable Tele-

vision Commission with the help of the

cable companies arbitrarily set all

applications from owners for compensa-

tion at one dollar ($1.00). Thus, faced

with this conduct, plaintiff claims her

only recourse was to begin this proceed-

ing.

Movants point out that the Tele-

prompter defendants had able counsel,

all aspects of the action that could be

were litigated. Movants note the Tele-

prompter defendants were joined by the

State of New York and New York City.

All this, movants claim, amounted to a

great deal of work. Movants contend the

State of New York by the Attorney Gener-

al exceeded its mandate under Executive

Law § 72 in defending the constitution-

ality of § 828 and in effect made itself

a true party defendant.

In the Supreme Court, Special Tern,

Part I, Justice Grossman granted summary

judgment in Teleprompter defendants’

favor (98 Misc.2d 944). The decision

was affirmed in the Appellate Division,

First Department (73 AD2d 849). The

Court of Appeals (53 NY2d 124), also

affirmed

payment

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$863.73 in June, 1981 (no judgment has

been entered on this). Based on the

U.S. Supreme Count decision, movants

state these should be vacated.

In reply, Group W opposes the motion

for fees on the ground plaintiff was not

the prevailing party, the action has

been based on claims of trespass and not

on the enforcement of a federal right,

the action herein has never been main-

tained as a class action (she was per-

mitted to do so, but the notice to class

was adjourned, contends Group W), and no

judgment has been entered in favor of

the putative class. Also Group W al-

leges plaintiff has not maintaivied any

tangible benefit for herself or her

class (Group W has presented affidavits

from its employees which state the land-

lords have been served with notices of

intention to install cable equipment and

the landlords’ rights to apply for just

compensation as per the new rules of the

State Commission on Cable Television but

Group W has not received any copies of

applications for compensation thus

emphasizing the plaintiff’s efforts were

for naught).

Group W maintains the only party

conceivably guilty of any wrongdoing is

the State Commission on Cable Television

and the State of New York. Group W con-

tends the plaintiff's success against

the State can be classified as a “hint

of success". Group W maintains the fact

that it (or its predecessors) was regu-

lated by the State does not implicate it

nor does it provide a basis for fees

under 42 U.S.C.A. §§ 1983, 1988.

Finally, Group W challenges plain-

tiff’s proof for fees is insufficient

and the request is excessive. Defendant

A-32

City of New York basically agrees with

the arguments set forth by Group Ww

(plaintiff has not "“prevailed", etc.),

and contends it is not liable due to

municipality immunity under 42 U.S.C.A.

§ 1983 (the State of New York did not

oppose the instant motion.).

In New York, the general rule is

that each litigant is required to absorb

the cost of his own attorneys’ fees, and

a defendant may not be required to pay

plaintiff's fees in the absence of a

contractual or statutory liability

(Mighty Midget v Centennial Insurance

Co., 47 NY2d 12).

42 U.S.C.A. § 1988 and CPLR § 909

represent the exceptions to the general

rule. 42 U.S.C.A. § 1983 imposes lia-

bility on those who under color of law,

custom or usage of any state or terri-

tory deprive other persons of rights,

privileges or immunities secured by the

Federal Constitution. (Gomez v Toledo,

446 U.S. 635). § 42 U.S.C.A. § 1988

states in part; “In any action or pro-

ceeding to enforce a provision of sec-

tion(s]) ... 1983 ... the court, in its

discretion may allow the prevailing

party, other than the United States, a

reasonable attorney’s fee as part of the

costs." Attorneys’ fees may be awarded

pursuant to § 1988 in a state court

proceeding (See New York Gaslight Club v

Carey, 447 U.S. 54).

The 1976 Civil Rights Attorney’s

Fees Award Act (42 U.S.C.A. § 1988)

sought to create a system of “private

attorney generals" to pursue national

policy who would be paid by an award of

attorney’s fees for representing a suc-

cessful or prevailing party (North-Cross

v Memphis Board of Education, 412 U.S.

427). Certainly, fees would be availa-

ble if it is found the challenged acts

violate the prevailing party’s constitu-

tional rights (Johnson v Blum, 58 NY2d

454). It is only where the respondents

established special circumstances (this

would also refer to the State and City

defendants. See Riddell v National

Democratic Party, 624 F2d 539) which

mitigate against awarding a fee to a

successful litigant (See Mid-Hudson

Legal Services, Inc. v G & U, Inc., 578

F2d 34). Fees are not limited to de-

fendants who have acted in bad faith

(See Christianburg Garment Co. V

E.E.0.C., 434 U.S. 4123; P.S.I. v Carey,

476 F. Supp. 4).

Thus, no bad faith need be shown by

plaintiff, and no special circumstances

are presented by defendants herein which

would preclude plaintiff from obtaining

A-35

attorney’s fees (Hensley v Eckerhart,

461 U.S. 424; See Carrion v Yeshiva

University, 535 F2d 722 where fees were

denied plaintiff when it was concluded

the litigation “was motivated by malice

and vindictiveness and that it was with-

out merit" p. 728). Further, defendants

would be able to attempt to show special

circumstances if a hearing on the fees

is required.

This brings us to the query: was

plaintiff a prevailing party under § 42

U.S.C.A. § 1983 so as to be entitled to

attorney’s fees under § 42 U.S.C.A.

§ 1988.

First, the plaintiff was not re-

quired to specifically plead 42 U.S.C.A.

1983 as to sustain a § 1983 claim

against a person or municipality, plain-

tiff must allege the municipality acted

in violation of the plaintiff’s federal-

A-36

ly guaranteed rights (Klimzak v City of

Chicago, 539 F. Supp. 221).

In determining whether to award

attorneys’ fees in a Civil rights case,

the issue as to whether the claimant is

a “prevailing party" presents an inquiry

which is properly a pragmatic one of

both fact and law that will ordinarily

range outside the merits of the basic

controversy (Bonnes v Long, 599 F2d

1316). Initially, the court ' should

consider the precise factual/legal con-

dition that the fee claimant has sought

to change or affect so as to gain a

benefit or be relieved of a burden; then

the outcome must be considered, in what-

ever form realized, is one which plain-

tiff’s efforts contributed in a signifi-

cant way, and which does involve an

actual conferral of benefit or relief

from a burden when measured against the

results sought (Bonnes v Long, supra).

Thus, one focuses on the relief ulti-

mately received, not the substantive

merits of plaintiff’s original claims

(Bagby v Beal, 606 F2d 411).

As to the plaintiff, she must be

deemed a “prevailing party.”

The U.S. Supreme Court, in Loretto v

Teleprompter Manhattan CATV Corp., 458

U.S. 419, found § 828 of the Executive

Law worked a taking of the plaintiff's

property under color of state law for

which she is entitled to just compensa-

tion under the Fourteenth Amendment in-

stead of the $1, among other accomplish-

ments recited by plaintiff (infra).

Further plaintiff served as a "catalyst"

(See Parkam v Southern Bell Telephone

Co., 433 F2d 421) in obtaining reforma-

tion of the recourse available to land-

fo)

A-39

plaintiff - for all practical purposes

aimed at the Executive Law and the State

Commission on Cable Television and the

conduct of the Attorney General - in

effect made the State of New York a

party subject to attorney fees (See

Butto v Finney, 437 U.S. 678) all of

those ultimately awarded. Certainly,

the defendant City, considered a "per-

son" under 42 U.S.C.A. § 1983, while not

| entitled to absolute immunity thereunder

(Morell v Dept. of Social Services of

the City of New York, 436 U.S. 658)

certainly should shoulder its fair share

of reasonable attorneys’ fees.

Although it is not necessary at this

point to determine whether a viable

class action exists here since both the

federal and state courts have concurrent

jurisdiction over cases alleging viola-

tions of 42 U.S.C.A. § 1983 (Young v

Board of Education, 416 F. Supp. 1139;

Cooper v Morin, 50 AD2d 32) and thus

both may award reasonable fees pursuant

to § 1988, the court feels a viable

class action under CPLR Article 9 does

exist (See CPLR § 901). There exists an

order allowing the class action to

exist. Further, the Court of Appeals

labeled the proceeding a class action

(Loretto v Teleprompter, 53 N.Y.2d 124,

133 noting no notice had been given.

This court does not see why notice can-

not now be given).

In elther ca

ep)

49)

‘@)

1.)

Grinnell Corp., 495 F2d 448, 470, lists

factors to be considered in fixing

attorneys’ fees (such as 1) whether

counsel had the benefit of a prior

ment or a decree in a case brought by

the government, 2) standin

of counsel,

3) time and labor, 4) magnitude and

complexity of the litigation, 5) respon-

sibility undertaken, 6) amount recov-

ered, 7) arguments, conferences prior to

trial, 8) what it would be practicable

for counsel to charge a victorious

plaintiff. Additional factors such as

the risk in litigation, the novelty of

the risk presented, and the skill re-

quired to obtain a good result. See

Washington Federal Savings and Loan

Association v Village Mall Townhouses,

Inc., 90 Misc.2d 227).

Consistent with the traditional re-

quest in this type of proceeding, the

judgment fund and its accrued interest

is the appropriate source for the pay-

ment of plaintiff's attorneys’ fees

rather than from defendants in a suc-

cessful class action (Steinberg v Citi-

corp Credit Services, 110 Misc.2d 804)

although the existence of such a fund is

not necessary for an award of fees (Suf-

folk Housing Services v Town of Brook-

haven, 69 AD2d 242).

The court feels the request by coun-

sel for fees at this point is premature.

In order to evaluate the true impact of

plaintiff’s actions and the efforts

therby [sic] of her counsel, the court

agrees with defendants that the plain-

tiff should proceed to the State Commis-

sion on Cable Television to enable it to

assess the "just compensation."

| a

(

e))

))

ct?

legations would provide the requisite

pool for attorneys fees while still

providing plaintiff and others witn just

compensation A hearing or presentatior

before the C ni l would etermine

thi as Gs N , Art

A-43

cle 78 proceeding, another reason this

motion is premature) at that point coun-

sel may renew its request, and it will

receive full and complete consideration.

Acccrdingly, the motion for counsel

fees anc costs is denied as premature

with leave to renew at the appropriate

time. The motion is granted to the ex-

tent that the complaint may be amended

in that Group W may be substituted for

the Teleprompter defendants.

DATED: June 25th, 1985

/s/ AMA

A-44

SUPREME COURT OF THE STATE OF NEW YORK,

SPECIAL TERM PART I, NEW YORK COUNTY

at the Courthouse thereof, 60 Centre

Street, New York, New York, 10007.

Present:

HON. ALFRED M. ASCIONE, JUSTICE.

wee ee eo ewe we eo eo we eo wo wo oe oe oo ow oe ee eee x

JEAN LORETTO, etc.

-against-

TELEPROMPTER MANHATTAN CATV

CORPORATION et al.

wee ee ee me we oe eo ew wo ww wo ow oe oe oe oe oe eee x

The following papers numbered 1 to 15

read on this motion, SUBMITTED

Papers Numbered

No. 89 on Calendar of

MAR 13 1985

Notice of Motion and

Affidavits Annexed 1-5

Answering Affidavits 6-13

. * *

Exhibits 2 Volumes 14-15

Stipulation-Referee’s Report-Minutes

* * *

Upon the foregoing papers this

Motion is decided in accordance with

accompanying memorandum decision.

Dated JUN 25 1985 /s/ AMA

J.S.C.

Briefs: Plaintiff's xxx Defendant’s xx

* * *

County Clerk’s No. 8300 1976

A-45

SUPREME COURT : NEW YORK COUNTY

SPECIAL TERM : PART I

ose eeeeee eee e see eee eo ooo sooo eco= > 4

JEAN LORETTO, on behalf of

herself and all others

similarly situated. Index No.

8300/76

Plaintiff,

-against- #130 of

10/23/85

GROUP W. CABLE, INC. and

CITY OF NEW YORK,

Defendants.

eS » 4

ALFRED M. ASCIONE, J.:

The motion and cross motion for

reargument are denied. The movants have

failed to demonstrate that the court

overlooked any relevant fact, misappre-

hended the law or, for any other reason,

mistakenly arrived at its determination

(see West Realty Co. v. City of New

York, 99 AD2d 708).

The court feels the parties must

exhaust their administrative remedies

before "just compensation" may be dis-

pensed. The exhaustion of administra-

tive remedies will provide a clear pic-

ture of the true impact of the plain-

tiff’s efforts. This would include

where there had been a "taking" of the

property of the plaintiffs. This court

in its prior determination and the Court

of Appeals (see Loretto v. Teleprompter

Manhattan CATV Corp., 58 NY2d 143, 147)

felt the next step for the fixation of

any compensation should be made by the

New York State Commission on Cable Tele-

vision. The parties should exhaust

their administrative remedies whereby

“just compensation" may be dispensed.

Utilizing the administrative procedures

will provide a clear picture of the true

actual impact of the efforts of the

intiff Jean Loretto and her counsel.

The doctrine of the exhaustion of

administrative remedies requires liti-

gants to address their complaints initi-

ally to administrative tribunals rather

than the courts and to exhaust all pos-

Sibilities of obtaining relief through

administrative channels before appealing

to the court (see Y.M.C.A. v. Rochester

Pure Waters District, 37 NY2d 371).

This permits the agency an opportunity

of develop factual findings to apply its

expertise to new issues and to exercise

its discretionary powers (see Touche

Roses & Co. ¥. 5.2.C., 609 Pea-s70).

The Commission on Cable Television,

using its expertise, should be permitted

to make a determination as to what is

"Just compensation". Such a determina-

tion would be reviewable pursuant to

Article 78 with the advantage of a full

record. This court cannot make such a

determination now. In light of the fact

counsel for the plaintiff seeks in ex-

cess of $500,000 in counsel fees, proper

procedures should not be short circuited

even if each individual plaintiff must

commence his or her own proceeding be-

fore the commission (a measure of the

"impact" of the plaintiff Lorreto’s

effort?). Any request for relief (from

plaintiff or defendants) at this point

in the proceeding is totally premature

ts o

69)

including the issue of co

DATED: DEC 6, 1985

/s/ AMA

FILED December 13, 1985

County Clerk’s Office

New York

SUPREME COURT OF THE STATE OF NEW YORK,

SPECIAL TERM PART I, NEW YORK COUNTY

at the Courthouse thereof, 60 Centre

Street, New York, New York, 10007.

Present:

HON. ALFRED M. ASCIONE, JUSTICE.

JEAN LORETTO. 8=————~CS :

-against-

GROUP W CABLE , INC. et ano

ELE ee x

The following papers numbered 1 to 8

read oon this motion, SUBMITTED &

REFERRED

Papers Numbered

No. 130 on Calendar of

OCT 23 1985

Order to Show Cause and

Affidavits Annexed 1&2

Answering Affidavit &

Cross-Motion 5-6

Replying Affidavit &

Exhibits A-E 7-8

*& *&

Affidavit of Service 3-4

x «*« *

Upon the foregoing papers’ this

Motion is decided in accordance with

accompanying memorandum decision.

Dated DEC 6 1985 /s/ AMA

ow «Ges

Briefs: Plaintiff’s xx Defendant’s x

County Clerk’s No. 8300, 1976

Spec I Liber L117 Line 2, 1985

FILED December 13, 1985

County Clerk’s Office

New York

STATE OF NEW YORK

COURT OF APPEALS

1 No. 17 OPINION

JEAN LORETTO, &c.,

Appellant,

TELEPROMPTER MANHATTAN

CATV CORP., et al.,

Respondents.

MEYER, J.

The Supreme Court in reversing our

order of affirmance in this case (457

0.s. . 402 8. Ce. 3166, 79 6.08/20

868 revg. 53 N.Y.2d 124, 440 N.Y.S.2d

843, 423 N.E.2d 320)+ and remanding to

us for further proceedings not inconsis-

tent with its opinion did not question

our holding that section 828 of the

Executive Law was a proper exercise of

the police power (457 U.S. at p. P

102 S. Ct. at pp. 3170-3171) but held

1 Relevant facts are set forth in our

earlier opinion and will not be

repeated here, familiarity with that

opinion being assumed.

that the “otherwise valid regulation so

frustrates property rights that compen-

Sation must be paid" (id; see also, 457

U.S. at p. _, 102 S. Ct. at p. 3179).

It expressed no opinion, however, on the

amount of compensation due, leaving that

question for the courts of this State to

determine on- remand (457 U.S. at

p. , 102 S. Ct. at p. 3179).

Before us on remand, plaintiff ar-

gues (1) that, her action being in tres-

pass and defendant TelePrompter being

without power to condemn, she is en-

titled to damages on a trespass theory;

(2) that section 828 of the Executive

Law does not authorize the commission it

Creates to adjudicate compensation or

provide for compensation as to crossover

installations; and (3) that the section

is unconstitutional because it violates

the separation of powers doctrine, and

fails to provide for compensation or

security in advance of taking, and vio-

lates due process in that notice is not

given the owner and that the commission

is biased.2 We conclude that the judg-

ment, 98 Misc. 2d 944, 415 N.Y.S.2d 180,

entered by Special Term should be modi-

fied (1) to make clear that its declara-

tion of the validity of section 828 is

subject to the fixation of compensation

by the commission upon application to

it, (2) to declare the commission’s

regulation 598.3 (9 NYCRR 598.3) inva-

2 She also asks that we fix the rule

of damages and pass upon various

procedural questions denied by

Special Term as moot. Concluding

as we do that compensation is to be

fixed by the commission subject to

review, we do not reach the damage

issue. As to the procedural issues,

our order is without prejudice to

the representation by either party

to Special Term of any appropriate

issue, including any previously

dismissed as moot.

lid, and (3) to retain jurisdiction for

the purpose of reviewing whether the

compensation fixed by the commission

constitutes just compensation within the

meaning of the Constitution, but to

permit plaintiff, if she be so advised,

to proceed with her action in trespass

for the period between February 28,

1972, the date on which she took title

to 303 West 105th Street, and January l,

1973, the effective date of section 828.

Except as so modified, the judgment

should he affirmed, with costs to plain-

citt.

We held and the Supreme Court agreed

that section 828 is a valid exercise of

the police power. From the effective

date of that section, therefore, Tele-

Prompter’s “invasion“ of plaintiff's

property was in pursuance of law and not

a trespass (Brewster v. Rogers Co., 169

N.Y. 73, 80, 62 N.E. 164). As to th

period between plaintiff’s acquisition

49)

¢)

of title and the e

ce eee , , . oe

TelePrompter is, therefore, entitled to

Plaintiff argues, however, that

} ‘s = hn mn ~ we = = _

aithnougna relePrompter Ma attan was

formed

aikaa

tion of the surviving corporation stated

that the power of condemnation was re-

tained. We do not pause to consider

whether the power to condemn is essen-

tial (see Boomer v. Atlantic Cement Co.,

26 N.Y¥.2d 219, 309 N.Y.S.2d 312, 257

N.E.2d 870) or whether, as defendants

urge, sections 906 (subd. [b], par. [1])

of the Business Corporation Law and

section 5 of the Transportation

Corporations Law may be read to continue

the condemnation power in the surviving

stock corporation nonetheless (see Mat-

ter of City of New York [New York Water

serv. Corp.], 296 N.Y. 1016, 73 N.E.2d

724, affg. 271 App. ODiv. 1019, 69

N.¥.S.2d 508, affg. 67 N.Y.S.2d 850, 853

(Sup.); cf. Kittinger v. Churchill, 161

Misc. 3, 14, 292 N.¥.8. 35, atta. on

opn. below 249 App. Div. 703, 292 N.Y.§.

51). Accepting the certified documents

. .

nceiuce

we co

Zion v. Kurtz, 50 N.Y.2d 92, 102, 428

N.¥.S.2d 199, 405 N.E.2d 681).

For the period prior to enactment of

section 828 plaintiff may maintain her

action in trespass, therefore, but un-

less one of her remaining arguments is

valid, she is entitled for the period

after that date only to compensation as

fixed by the commission.

We turn then to plaintiff’s statu-

tory arguments and note, first, that the

United States Supreme Court having held

that the character of the governmental

action involved in section 828 is a

taking which entitles a property owner

affected by it to compensation, the

section is to be construed so as to

Sustain its constitutionality in light

of that holding if possible (People v.

Ferber, 52 N.Y.2d 674, 678, 439 N.Y.S.2d

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erty owner in exchange for permitting

cable television service on his proper-

ty; subdivision 3 of section 816 author-

izes the commission to compel the pro-

duction of papers, the attendance of

witnesses and their examination under

oath in order to obtain the information

necessary to administer any provision of

article 28 of the Executive Law; and

subdivision 5 of the same section grants

to the commission “all other powers

necessary or appropriate to carry out

the purposes” of the article. The com-

mission is, therefore, empowered to fix

reasonable compensation for a taking and

provided with the procedural means for

adjudication of that issue. The only

seemingly contrar indication in the

statute is the presence of the words “by

regulation in section 828 (subd. 1,

par. bD). However, those words when read

in context are not inconsistent with the

power of adjudication given the commis-

sion by section 816; what paragraph b of

subdivision 1 does is authorize the

commission to limit by regulation the

highest amount a property owner may

receive, unless on application by the

property owner to the commission that

body, after a section 816 hearing, fixes

a higher sum as the reasonable compensa-

tion for the particular property. 2 The

3 Although as noted in footnote 2 we

do not now determine the measure of

damages, that being for the

commission in the first instance, we

note, in light of the Supreme

Court’s ruling, that reasonable

compensation does not differ from

just compensation, which as_ a

constitutional concept requires the

fixing of compensation as of the

time of the taking (in plaintiff’s

case, January i, 1973, the effective

date of section 828) plus interest

at the legal rate as it existed

during the period between that date

and the payment made as a result of

the commission determination (City

of Buffalo v. Clement Co., 28 N.Y.2d

(Footnote 3 continued on next page)

commission’s regulations are entirely

consistent with its being so empowered

for they expressly provide (9 N.Y.CRR

598.1-598.7) for just such an applica-

tion and determination and establish

rules as to pleadings, hearing and prac-

tice before the commission (9 N.Y.CRR

590.3, 590.4, 590.6-590.10,

590.51-590.59) fully compatible with the

usual process of adjudication.

For a number of reasons the exclusi-

vity provision of the Eminent Domain

Procedure Law (EDPL 101) does not, as

(Footnote 3 continued from previous page)

241, 254, 266, 321 W.Y%.3.24 345, 269

N.E.2d 895; see San Diego Gas &

Elec. Co. v. San Diego, 450 U.S.

621, 656-659, 401 S&S. Ct. l2zc7,

1306-1307, 67 L. Ed.2d 551 [Brennan,

J., dissenting, but note that three

other Justices joined in the dissent

and that Justice Rehnquist, while

concurring in the majority’s

dismissal on jurisdictional grounds,

announced his acceptance of the

principles stated in the Brennan

dissent]).

plaintiff suggests, require a contrary

conclusion. Foremost is that what we

are construing is an Executive Law pro-

vision specially enacted to deal with

and promote the cable television indus-

try, containing express provision for

the determination of reasonable compen-

sation in other than a condemnation

context but which, because it has now

been held to constitute a de facto tak-

ing, must be applied in that context.

The procedure established in the Execu-

tive Law was established in light of the

expertise of the cable television com-

mission, the small amount of space occu-

pied by cable facilities and the large

number of individual properties that

would be involved if the legislative

purpose of “maximum penetration * * * as

rapidly as feasible" (Executive Law,

§ 811) was to be accomplished. It was

enacted three and a half years before

the Eminent Domain Procedure Law and was

not mentioned in chapter 840 of the Laws

of 1977 by which some 30 different laws

were amended or repealed in order to

conform their provisions to the EDPL.

The EDPL being a general rather than a

special law, section 828 procedures

should not be held to have been superse-

ded by its provisions, the more particu-

larly so because to do so would require

first instance court processing of a

large number of small claims intended to

be dealt with in the courts only by way

of review of the commission’s determina-

tion (see People v. Mann, 31 N.Y.2d 253,

aee@eee, eae Mst.s.2G 633, 288 N.E.2d

595; McKinney’s Cons. Laws of N.Y.,

Book 1, Statutes, §§ 396, 398).4

4 As to the instant action, a further

reason that EDPL does not apply is

(Footnote 4 continued on next page)

Nor do crossover installations pres-

ent a problem in construing the statute.

The conclusion reached in our _ prior

opinion was "that the Legislature inten-

ded to proscribe interference with ac-

cess for installation of facilities on

the property for whatever purpose with-

out any provision for payment" (53

N.Y.2d at p. 142, 440 N.Y.S.2d 843, 423

N.E.2d 320; emphasis added). The Su-

preme Court has now held that the Cons-

titution requires payment for both

crossover and noncrossover facilities

(457 U.S. at Dp. , s02 &. CE. at

(Footnote 4 continued from previous page)

section 706 of that law, which

expressly provides that an action

pending on the effective date of the

chapter "may be prosecuted as if

this chapter had not been enacted."

The present action was begun two and

a half years before the effective

date of EDPL. We prefer, however,

to base our conclusion upon the

reasoning set forth in the text.

p. 3178) and the procedural provisions

of section 816 are clearly broad enough

to encompass determination of compensa-

tion for either or both. Although the

commission’s rules (9 N.Y.CRR

598.1-598.7) do not as presently written

expressly include crossovers, they must,

as a result of the Supreme Court’s hold-

ing, be construed impliedly to include

them and, we have no doubt, will be

promptly amended to conform to that

holding.

III

There remain for consideration the

alleged constitutional flaws.

Plaintiff’s separation of powers

arguments do not withstand analysis.

Neither the Federal nor the State Cons-

titution proscribes determination of

compensation for a taking by a commis-

sion rather than a court. Thus in

Bauman v. Ross, 167 U.S. 548, 593, 17 S.

Ct. 966, 42 L.Ed. 270, the Supreme Court

approved of commissioners “appointed by

a court or by the executive" and former

paragraph (b) of section 7 of article 1

of the New York Constitution, which was

repealed in 1964 as “obsolete and super-

fluous" (McKinney’s Cons. Laws of N.Y.,

Book 2, N.Y. Const., Art. 1, § 7, His-

torical Note), authorized determination

of compensation by commissioners.

Plaintiff’s emphasis on our reference in

Matter of Keystone Assoc. v. Moerdler,

19 N.Y.2d 78, 89, 276 M.%.8:424 183, 2245

N.E.2d 700, to the determination of

compensation as a judicial function is

misplaced. What was there held, as the

citation of Matter of City of New York

(Fifth Ave. Coach Lines), 18 N.Y.2d 212,

218, 273 N.¥.8.24° 82, 219) meee eae,

shows, was that the Legislature may not

itself fix compensation, not that it may

not authorize the first instance deter-

mination of compensation by commissio-

ners or a commission, subject to later

judicial review.

Nothing in article VI of the New

York Constitution requires a contrary

conclusion. United Baking Co. v.

Bakery and Confectionery Workers’ Union,

257 App. Div. 501, 14 N.Y.S.2d 74, on

which plaintiff relies, is distinguish-

able, for there the agency’s findings

would not have been subject to review

(id. at p. 506, 14 N.Y.S.2d 74), whereas

under section 828 the commission’s de-

termination is subject to review, in the

instant case, in this proceeding and, in

cases not similarly arising, by arti-

cle 78 review. Nor does subdivision b

of section 7 of Article VI of the Cons-

titution require, as plaintiff suggests,

that the Supreme Court have "concurrent

jurisdiction along with any other court

or agency" (emphasis supplied). The

subdivision makes no reference whatso-

ever to agencies as distinct from courts

and plaintiff points to nothing else to

Suggest that administrative agencies

cannot be given a first instance adjudi-

catory function, subject to judicial

review.

Although advance payment or the pro-

vision of security for payment of con-

pensation is the general rule when prop-

erty is taken for a private use, neither

is an absolute in the law of just com-

‘sensation (Brickett v. Haverhill Aque-

duct Co., 142 Mass. 394, 8 N.E. 119; see

Cherokee Nation v. Kansas Ry. Co., 135

Ct. 965, 34 L. Ed. 295;

American Tel. & Tel. Co. of N.J., 128

N.J. Super. 238, 319 A.2d 754). The

Constitution does not require that the

Statutory aim of “rapid development of

the cable television industry" (Execu-

tive Law, § 811; see also § 815,

subd. [2], par. [d], cl. [iii]) be frus-

trated under the circumstances of this

case, where TelePrompter has proceeded

in good faith under a statutory license

not conditioned upon the advance payment

of or security for compensation but

which must now, as a result of the Sup-

reme Court’s ruling, be construed to

require adequate compensation. The

critical inquiry is whether the’ due

process requirement of just compensation

has been met. Where, as here, so far as

the record discloses (1) the amount

receivable by any single property owner

is small, (2) the damage to such an

A-70

owner’s property by attachment of cable

facilities relatively insignizicant,

(3) TelePrompter has offered in light of

the Supreme Court’s ruling to post a

bond, and (4) the powers of the commis-

Sion are broad enough to encompass a

requirement by rule or order or both of

advance payment or security as deemed

necessary to assure the adequacy of

compensation as to both amount and cer-

tainty of payment and Special Term on

remand to it will have similar power,

there is reasonable certainty that

plaintiff and the members of the class

as finally determined will receive just

compensation for the takings that have

resulted from TelePrompter’s various

entries pursuant to statutory leave. It

would, of course, had the statutory

scheme been envisioned by the Legisla-

ture as a taking, have been better had

the statute included explicit provisions

dealing with the problem. Under the

circumstances of this case, however, it

would be an exaltation of form over

substance to invalidate the statutory

license, authorized as the Supreme Court

has held by the police power, on such a

basis.

The due process objection predicated

on commission bias is sufficiently an-

swered by Withrow v. Larkin, 421 U.S.

35, 56-58, 95 S. Ct. 1456, 1469-1470, 43

L. Ed.2d 712 and Richardson v. Perales,

402 U.S. 389, 410, 91 S. Ct. 1420, 1431,

28 L. Ed.2d 842 and need not be dis-

cussed further. Equally unavailing is

the suggestion of constitutional impro-

priety claimed to result from the as-

sessment provisions of section 817 of

the Executive Law (People ex rel. New

York Elec. Lines Co. v. Squire, 107 N.Y.

593, 602, 14 N.E. 820, affd. 145 U.S.

175, 12 S. Ct. 880, 36 L. Ed. 666; see,

also, Matter of Kings County Light. Co.

v. Maltbie, 244 App. Div. 475, 280

N.Y¥.S. 560). Notably, unlike Ward v.

Village of Monroeville, 409 U.S. 57, 93

S. Ct. 80, 34 L. Ed.2d 267, there is

here no such direct relationship between

the commission’s finances and its deter-

mination of compensation to be paid by

CATV companies to property owners as to

constitute a denial of due process.

Plaintiff’s remaining due process

arguments relate to the fact that notice

is not required to be given and that the

commission’s regulations (9 N.Y.CRR

598.3) require that an owner’s applica-

tion be made within 60 days after Octo-

ber 30, 1973 or the date of installa-

tion, whichever is later. The notice

problem is not properly before us (see

Telaro v. Telaro, 25 N.Y.2d 433, 439,

306 N.Y.S.2d 920, 255 N.E.2d 158; Cohen

and Karger, Powers of the New York Court

of Appeals [rev. ed.]}, p. 641), but in

any event appears from the stipulated

facts no longer to present a problem.

The limitation upon presentation of a

Claim, framed in the context of a police

power rather than a condemnation sta-

tute, could be construed by the commis-

Sion to bar claims as to which an owner

did not in fact have notice in time to

comply with the regulation. Nothing in

the statute required the adoption of

such a regulation, however, or prevents

the commission from adopting a new regu-

lation relating the limitation period to

the service of notice upon a property

owner. Such problem as the present

regulation creates will be sufficiently

taken care of by modifying the judgment

to declare the regulation invalid but

does not require invalidation of the

underlying statute.

For the reasons set forth above the

order of the Appellate Division, 73

A.D.2d 849, 422 N.Y.S.2d 550, should be

modified, with costs to appellant, and

the case remitted to Supreme Court, New

York County, for further proceedings in

accordance with this opinion and, as so

modified, affirmed.

[ COOKE, Cede y and JASEN, JONES,

WACHTLER, FUCHSBERG and SIMONS, JJ.

Concur. ]

Upon reargument, following remand by the

Supreme Court of the United States,

order modified, with costs to appellant,

and case remitted to Supreme Court, New

York County, for further proceedings in

accordance with the opinion herein and,

as so modified, affirmed.

Decided February 17, 1983

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Lawrence H. Cooke, Chief Judge,

Presiding

No. 17

Be eh a le apie Oe ies ae Sa cea x

JEAN LORETTO, & Cc.

Appeilant,

Vv. 8300/76

TELEPROMPTER MANHATTAN CATV

CORP., et al.,

Respondents.

sx Us ay cn sls ln spn a re ac sh Su ek hes a a x

The appelant in the above entitled

appeal appeared by Gruen, Muskin & Thau,

Esqs.;

The respondent(s) appeared by Shea &

Gould, Esqs.; Frederick A.O. Schwarz,

Jr., Corporation Counsel; and Robert

Abrams, Attorney General also appeared.

The Court, after due deliberation,

orders and adjudges that upon reargu-

ment, following remand by the Supreme

Court of the United States, order modi-

fied, with costs to appellant, and case

remitted to Supreme Court, New York

County, for further proceedings in ac-

cordance with the opinion herein and, as

so modified, affirmed. Opinion by Judge

Meyer. Chief Judge Cocke and Judgees

Jasen, Jones, Wachtler, Fuchsberg and

Simons concur.

The Court further orders that the

papers required to be fiied and this

record of the proceedings in this Court

be remitted to the Supreme Court, New

York County, there to be proceeded upon

according to law.

I certify that the preceding contans

a correct record of the proceedings in

this appeal in the Court of Appeals and

that the papers rquired to be filed are

attached.

/s/ Joseph W. Bellacosa

Joseph W. Bellacosa,

Clerk of the Court

Court of Appeals, Clerk’s Office,

Albany,

February 17, 1983.

At a Special Term, Part I

of the Supreme Court of

the State of New York,

held in and for the County

of New York, 60 Centre

Street, New York, New York

on the llth day of July

1983

PRESENT: HON. ALVIN F. KLEIN, JUSTICE.

Sl ee ee ee ee ee ee pd

JEAN LORETTO, on behalf of : Index No.

herself and all others 8300/76

Similarly situated, :

Plaintiff-Appellant, :

ORDER AND

-against- : JUDGMENT

TELEPROMPTER MANHATTAN : REMITTITUR

CATV CORP., TELEPROMPTER

CORPORATION and CITY OF

NEW YORK,

Defendants-Respondents.

re ee cre ee ee ee ee ee ee eee ee ee ee ee ee ee ee ee ee ee x

Plaintiff-appellant herein, having

appealed to the Court of Appeals of the

State of New York, from an Order of the

Appellate Division, First Department,

entered in the office of the Clerk of

said Court on the llth day of December,

1979, which Order unanimously affirmed,

without opinion, a judgment of the Sup-

reme Court, New York County (Grossman,

J.) made on April 2, 1979 and entered on

April 11, 1979, which granted summary

judgment to the defendants and dismissed

the complaint, and the Court of Appeals,

having heard said appeal and ordered and

adjudged that the Order so appealed from

be affirmed, with costs, and the Remit-

titur of the Court of Appeals having

been duly filed in the office of the

Clerk of the County of New York; and

this Court having made its Order For

Judgment on remittitur from the Court of

Appeals on May 19, 1981;

AND plaintiff having appealed to the

United States Supreme Court from the

order and judgment of the Court of Ap-

peals dated May 7, 1981, and the Supreme

Court having noted probable jurisdiction

on October 19, 1981, and said appeal

having been heard by the United States

Supreme Court, and the United States

Supreme Court having rendered a decision

snd order dated June 30, 1982, reversing

the judgment of the Court of Appeals and

remanding the case;

AND the Court of Appeals having

heard the case on remand, and the Court

of Appeals having rendered a decision

and order dated February 17, 1983, that

the order and judgment of the Supreme

Court, New York County (Grossman, J.)

made on April 2, 1979 and entered on

April 11, 1979 be modified and the case

remitted to Supreme Court, New York

County, in accordance with its decision

and, as modified, that such order and

judgment be affirmed, and said order of

the Court of Appeals dated February 17,

1983 having been duly filed in the of-

fice of the Clerk of the County of New

York on March 8, 1983;

AND plaintiff having moved for rear-

gument before the Court of Appeals, and

Said motion for reargument having been

denied by order of the Court of Appeals

dated April 28, 1983;

NOW, on motion of Shea & Gould,

attorneys for Teleprompter Manhattan

CATV Corporation and Teleprompter Corpo-

ration (the “Teleprompter Defendants"),

it is hereby

ORDERED and ADJUDGED, that the Order

and Judgment of this Court made on April

2, 1979 and entered on April 11, 1979 in

the office of the Clerk of the County of

New York is modified as follows:

(a) It is hereby declared that sec-

tion 828 of the Executive Law represents

a reasonable and, therefore, justifiable

exercise of the police power of the

State, both with respect to cable TV

components placed directly on premises

serviced by the Teleprompter Defendants

and premises on which equipment is

placed to service another building,

subject to the fixation of compensation

to the owner of such premises by the New

York State Commission on Cable Televi-

Sion (the "Commission") upon application

to it;

(b) Regulation 598.3 of the Commis-

Sion (9 NYCRR 598.3) is declared inval-

id; and

the purpose of reviewing whether the

compensation fixed by the Commission

constitutes just compensation within the

meaning of the Constitution, and to

permit plaintiff, if she be so advised,

to proceed with her action in trespass

for the period between February 28, 1972

and January 1, 1973; and to re-present

by either party any appropriate issue,

including any previously dismissed as

moot, and it is further

ORDERED and ADJUDGED that, except as

modified hereinabove, the order and

judgement made herein on April 2, 1979

and entered on April 11, 1979 in the

office of the Clerk of the County of New

York remains in full force and effect.

ENTE R:;

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Excerpt from Plaintiff's

Motion to N.Y. Court of

Appeals for Leave to

Appeal

QUESTIONS PRESENTED FOR REVIEW

The following questions, without

limitation, will be presented by Plain-

tiff for review:

1. Is Plaintiff entitled to attor-

neys’ fees as the “prevailing party” in

a class action under the Federal Civil

Rights Act of 1964 (42 U.S.C. § 1988)

and CPLR § 909 where the United States

Supreme Court has determined in Plain-

tiff’s favor (reversing this Court) that

Defendant Group W’s installation of

cable television transmission equipment

on private property under ostensible

authority of Executive Law § 828 consti-

tutes a taking requiring just compensa-

tion to be paid, although this Court had

previously ruled that property owners

are entitled to no compensation whatso-

ever other than what the State Commis-

sion on Cable Television may grant on a

discretionary basis; where this Court

then directed the Commission to revise

its procedures accordingly and the Com-

mission did so; and where Plaintiff

succeeded in eliminating the Commis-

sion’s former 60-day statute of limita-

tions which had effectively cut off the

vast bulk of potential claims, including

Plaintiff’s?

2. If Plaintiff is the “prevailing

party”, may the application for attor-

neys’ fees nevertheless be denied as

“premature” merely because a proceeding

would have to be maintained in an admin-

istrative agency to determine Plain-

tiff’s individual damages?

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.