| Matter of Newtown Cr. Water Pollution Control PlantUpgrade |
| 2009 NY Slip Op 06692 [65 AD3d 1241] |
| September 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Newtown Creek Water Pollution Control PlantUpgrade. Mobil Oil Corporation, Respondent; City of New York,Appellant. |
—[*1] Goldstein, Goldstein, Rikon & Gottlieb, P.C., New York, N.Y. (Michael Rikon of counsel),for respondent.
In a condemnation proceeding, the condemnor appeals from (1) an order, judgment, anddecree (one paper) of the Supreme Court, Kings County (Gerges, J.), dated February 21, 2008,and (2) an amended order, judgment, and decree (one paper) of the same court dated April 3,2008, which, upon a decision of the same court dated January 15, 2008, made after a nonjurytrial, is in favor of the claimant and against it in the sum of $8,505,457 with 6% interestcompounded annually from September 19, 1997, until payment is deposited in an escrowaccount, as just compensation for the taking of its real property.
Ordered that the appeal from the order, judgment, and decree is dismissed, without costs ordisbursements, as the order, judgment, and decree was superseded by the amended order,judgment, and decree; and it is further,
Ordered that amended order, judgment, and decree is modified, on the law, by deleting theprovisions thereof awarding 6% interest compounded annually from September 19, 1997, untilpayment is deposited in an escrow account, and substituting therefor provisions awardinginterest in the amount of 6% per annum for that period; as so modified, the amended order,judgment, and decree is affirmed, without costs or disbursements, and the order, judgment, anddecree is modified accordingly.
In determining an award to an owner of condemned property, the findings must be within therange of expert testimony or be supported by other evidence and adequately explained by thecourt (see Matter of City of New York [Reiss], 55 NY2d 885, 886 [1982]; Matter of Town of E. Hampton [WindmillII Affordable Hous. Project (9 Parcels)], 44 AD3d 963, 964 [2007]; Estate ofDresner v State of [*2]New York, 262 AD2d 274, 275[1999]). The condemnor contends that the trial court failed to make an adjustment for thesuperior location of a property on Hamilton Avenue when comparing that property to the subjectone. However, contrary to the condemnor's contention, the trial court did make such anadjustment. Moreover, since the trial court's findings were within the range of expert testimony,we decline to disturb its award (seeRockland Dev. Assoc. v State of New York, 15 AD3d 381, 381-382 [2005];D'Angelo v State of New York, 253 AD2d 733, 734 [1998]; Gold-Mark 35 Assoc. vState of New York, 210 AD2d 377, 379 [1994]).
To ensure that a condemnee obtains just compensation, a municipality is constitutionallyrequired to pay prejudgment interest to compensate for delay in making payment and deprivationof use of the property (see EDPL 514 [A]; Matter of Metropolitan Transp. Auth. vAmerican Pen Corp., 94 NY2d 154, 158 [1999]; Adventurers Whitestone Corp. v City ofNew York, 65 NY2d 83, 87 [1985]; Matter of County of Nassau [Eveandra Enters.],42 NY2d 849, 850 [1977]). General Municipal Law § 3-a (2) provides that the "rate ofinterest to be paid upon any judgment or accrued claim against the municipal corporation arisingout of condemnation proceedings . . . shall not exceed six per centum per annum."Per centum per annum has been construed to mean simple interest (see Giventer v Arnow,37 NY2d 305 [1975]; Matter of American Sav. Bank v State Tax Commn., 103AD2d 963, 964 [1984]). " 'The amount of interest necessary to bring the payment into accordwith the constitutional requirement is a judicial question, although the interest rate fixed by theLegislature will be deemed presumptively reasonable' " (Matter of Metropolitan Transp.Auth. v American Pen Corp., 94 NY2d at 158, quoting Adventurers Whitestone Corp. vCity of New York, 65 NY2d at 87). "[T]he statutory rate being presumptively reasonable, aclaimant who claims to be constitutionally entitled to a higher rate of interest bears the burden ofproving the constitutional insufficiency of the statutory rate" (Adventurers Whitestone Corp.v City of New York, 65 NY2d at 87-88; see Matter of Metropolitan Transp. Auth. vAmerican Pen Corp., 94 NY2d at 158 n 1; Matter of City of New York v Estate ofLevine, 196 AD2d 654, 655 [1993]). Here, the claimant failed to present any experttestimony to rebut the presumption of reasonableness associated with the statutory rate ofinterest (cf. 520 E. 81st St. Assoc. vState of New York, 19 AD3d 24, 27 [2005]). In the absence of such evidence, the trialcourt should have applied the statutory rate of 6% simple interest.
The condemnor's remaining contention is without merit. Mastro, J.P., Skelos, Florio andLeventhal, JJ., concur.