Balfour Concessions, Ltd. v. City of New York

Order of the Supreme Court, New York County (Eugene R. Wolin, J.), entered March 19, 1985, and judgment entered thereon March 27, 1985, granting plaintiffs’ motion for summary judgment and denying defendant City of New York’s cross motion for summary judgment, is reversed, on the law, without costs, and the cross motion by defendant for summary judgment dismissing the complaint granted. A condemnation proceeding was settled by the parties pursuant to a stipulation which provided, inter alia, that the city would pay "lawful interest” on the award. This stipulation was thereafter incorporated into the final decree entered on April 7, 1981. When the city made the final payment on November 1, 1981, it included interest at the statutory rate of 6% pursuant to that decree. Plaintiff Samuel Goldstein & Sons accepted this payment only under protest and commenced this action for the additional interest. Special Term held that, pursuant to Matter of South Bronx Neighborhood Dev. Plan (110 Misc 2d 571, affd sub nom. Matter of City of New York [Brookfield Refrig. Corp.], 89 AD2d 948, affd 58 NY2d 532), the "lawful interest” for the years 1978 through 1981 is 9% rather than the statutory 6% and awarded plaintiff summary judgment for the higher rate of interest. However, in Adventurers Whitestone Corp. v City of New York (65 NY2d 83, revg 102 AD2d 769), the Court of Appeals held that where there was no challenge by the plaintiff to the [248] statutory rate in the condemnation proceeding, the plaintiff could not commence an independent action for such additional interest and could recover only the statutory rate. As in Adventurers Whitestone (supra, p 91), plaintiff herein "neither raised the question of the rate of interest constitutionally required in the condemnation proceeding nor preserved by stipulation its right to litigate the issue in another forum”, and is, therefore, barred by res judicata from any further claim. (See also, Glantz v City of New York, 116 AD2d 498 [1st Dept].) The use of the term "lawful interest” in the stipulation does not change this result since the use of this term predated the nisi prius decision in Brookfield (supra) and, therefore, could only signify the 6% statutory rate of interest. Concur — Asch and Milonas, JJ. Wallach, J., concurs with the majority writing and in a separate memorandum; Kupferman, J. P., and Fein, J., dissent in a memorandum by Fein, J., all as follows: