Keyspan Gas E. Corp. v. Supervisor of Town of Hempstead

189 A.D.3d 1571

135 N.Y.S.3d 289 (Mem)

KEYSPAN GAS EAST CORPORATION, etc., appellant-respondent,

v.SUPERVISOR OF TOWN OF HEMPSTEAD, et al., respondents-appellants

(and a third-party action).

2018–07375

Index No. 6349/11

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 16, 2020

December 30, 2020

Cullen and Dykman LLP, Garden City, N.Y. (Jennifer A. McLaughlin, Karen I. Levin, and Ariel E. Ronneburger of counsel), for appellant-respondent.

Jaspan Schlesinger LLP, Garden City, N.Y. (Andrew M. Mahony and Christopher E. Vatter of counsel), for respondents-appellants.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a consolidated action, inter alia, for a judgment declaring that the imposition of special ad valorem levies for garbage and refuse collection services against certain "mass" properties owned by the plaintiff is illegal and void, the plaintiff appeals, and the defendants cross-appeal, from a judgment of the Supreme Court, Nassau County (Anthony F. Marano, J.), entered March 7, 2018. The judgment, after a hearing, insofar as appealed from, awarded the plaintiff prejudgment interest at the rate of only 6.02% annually. The judgment, insofar as cross-appealed from, awarded the plaintiff prejudgment interest at the rate of 6.02% annually.

ORDERED that the judgment is reversed insofar as appealed from, on the law, and the plaintiff is awarded prejudgment interest at the statutory rate of 9% annually; and it is further,

ORDERED that the judgment is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Pursuant to General Municipal Law § 3–a(1), prejudgment interest on an award against a municipality is limited to a maximum of 9% (see Rodriguez v. New York City Hous. Auth., 91 N.Y.2d 76, 80, 666 N.Y.S.2d 1009, 689 N.E.2d 903 (1997) ; Millenium Envtl., Inc. v. City of Long Beach of State of N.Y., 35 A.D.3d 408, 411–412, 827 N.Y.S.2d 171 (2006) ). To rebut the presumption of reasonableness accorded to the maximum rate set forth in General Municipal Law § 3–a(1), a municipal defendant must demonstrate, by substantial evidence, that rates of return on both public and private investments during the relevant period are below 9% (see Denio v. State of New York, 7 N.Y.3d 159, 168, 818 N.Y.S.2d 802, 851 N.E.2d 1153 (2006) ; Abiele Contr. v. New York City School Constr. Auth., 6 A.D.3d 366, 367, 774 N.Y.S.2d 380 (2004) ).

Here, for...