Opinion
October 23, 1970
Kinnie, Brown Dierdorf for plaintiff.
Lockwood Lockwood for defendants.
This present motion for summary judgment arises out of a condemnation proceeding where title to and possession of the real property in question was acquired by the plaintiff pursuant to an order of condemnation on September 7, 1966.
Without delineating the prior proceedings which lead to the present motion, suffice to say that it is the defendant, John H. Sullivan, Jr.'s (hereinafter referred to as Sullivan) position that he is entitled to interest on the award in condemnation at the rate of 6% rather than 4%. In addition, he seeks incidental interest at the rate of 6% on the amounts of interest which he claims should have been included in the judgments.
At the time of the taking the legal rate of interest on a condemnation award was 4% as set forth in subdivision 2 of section 3-a Gen. Mun. of the General Municipal Law. The law was amended effective July 26, 1969 so as to increase the rate to 6% per annum. In prior motions involving the same issue, this court has, in unpublished decisions, consistently ruled that the interest at the rate of 4% would be unreasonably low and deprive the claimant of just compensation. Matter of City of New York ( Manhattan Civic Center Area) ( 57 Misc.2d 156, affd. 32 A.D.2d 530) was cited as authority for that proposition. It is interesting to note that the City of New York case has now been affirmed by the New York State Court of Appeals in 27 N.Y.2d 518. (See, also, Matter of City of Rochester [ Robfogel], 61 Misc.2d 231, 233.)
The latter case implied that the court might take judicial notice of the fluctuation in interest rates in arriving at a just rate. (See, also, City of Buffalo v. Clement Co., 34 A.D.2d 24, 35.)
Therefore it is this court's decision that since plaintiff has paid to the defendant, Sullivan, at the rate of 4% on the sum of $265,500 from September 7, 1966 to March 21, 1969, the said plaintiff should therefore pay the additional sum computed at 2% per annum on said sum up to the date of entry of judgment, to wit, $13,456.84. In addition since the plaintiff has paid to the defendant, Sullivan, at the rate of 4% on $104,500 from September 7, 1966 to July 25, 1969 said plaintiff should pay to the defendant, Sullivan, the additional sum computed at 2% per annum on the sum of $104,500, to wit, $6,018.04.
Defendant, Sullivan, further seeks 6% interest on the sums to which he claims to be entitled. In other words, he seeks 6% interest on both the sum of $13,456.84 and $6,018.04 from March 21, 1969 and from October 7, 1969 to the date of making payment of the increased awards.
The plaintiff contends that this is awarding interest on interest. However, it is this court's decision that such interest forms a part of the just compensation which must be paid the owner and forms part of the judgment. Since it was not paid, he is entitled to interest earned after the entry of a final judgment of condemnation. (See 19 N.Y. Jur., Eminent Domain, § 243.)
The defendant, Sullivan, is entitled to 6% on the increased awards herewith made.