Upon the foregoing papers in this eminent domain proceeding, claimant Anthony A. Lenza moves for an order, pursuant to Unconsolidated Laws § 2501, directing that the advance payment tendered to him by the New York City School Construction Authority (the Authority) is subject to a presumptive interest rate of 9% from the date of taking to the date of payment.

The Authority commenced this proceeding by filing a notice of petition on November 1, 2005; title vested on December 14, 2005. Thereafter, claimant filed a timely notice of claim. On August 23, 2006, the New York City Corporation Counsel tendered an advance payment to claimant in the amount of $2,050,000, plus interest in the amount of $87,330, which represents interest in the amount of 6%.

In support of his motion, claimant argues that the Authority was created under Public Authorities Law § 1727 as a "public benefit corporation." Unconsolidated Laws § 2501 provides that the "rate of interest to be paid by a public corporation upon any judgment or accrued claim against the public corporation shall not exceed nine per centum per annum." [*2]In reliance upon the case of Metropolitan Transportation Authority v American Pen Corp. (94 NY2d 154 [1999]), claimant thus concludes that pursuant to Unconsolidated Law § 2501, he is entitled to interest at the rate of 9% on the advance payment tendered to him by the Authority. Hence, additional interest in the amount of $168.49 per day is due and owing to him from the date of the taking until payment is tendered.

In opposition, the Authority argues that Public Authorities Law § 1744 (7) provides that "[t]he rate of interest to be paid by the authority upon any judgment for which it is liable, shall not exceed the rate of interest on judgments and accrued claims against municipal corporations as provided in the general municipal law from time to time." Pursuant to General Municipal Law § 3-a (2), "[t]he rate of interest to be paid upon any judgment or accrued claim against the municipal corporation arising out of condemnation proceedings or action to recover damages for wrongful death shall not exceed six per centum per annum." The Authority therefore concludes that it properly paid claimant interest at the rate of six percent on his advance payment.

The court agrees that the rate of interest to be paid to claimant herein is controlled by the holding in Metropolitan Transportation Authority (94 NY2d 154). Therein, the Court of Appeals rejected the condemnor's claim that interest in the amount of four percent should be paid on a prejudgment condemnation award pursuant to Public Authorities Law § 1276 (5), and instead held that interest should be paid at the rate of nine percent as provided by Unsolidated Laws § 2501. In so holding, the court reasoned that:

"Public Authorities Law § 1276 ( Actions against the authority') is a consent to suit provision authorizing suit against the MTA. It applies to all actions against the MTA for damages, for injuries to real or personal property or for the destruction thereof,' personal injuries or death (see, Public Authorities Law § 1276 [1], [2], [3]). It is generally for these types of actions, and not for constitutional claims for just compensation, that the Legislature mandated that interest rates for any judgment' against the MTA not exceed 4%. Indeed, it is not Public Authorities Law § 1276 but the New York State Constitution that enables condemnees to bring suit against the MTA (see, NY Const, art I, § 7 [a]). The State and its agencies are never immune from claims arising out of the exercise of their power of eminent domain. A consent to suit statute, such as Public Authorities Law § 1276, is thus inapposite to claims for just compensation."

(Metropolitan Transp. Auth., 94 NY2d at 159).

Public Authorities Law § 1744, the statute relied upon by the Authority, is analagous to Public Authorities Law § 1276 in that it is a consent to suit provision that applies, by its terms, to actions or proceedings:

"against the authority, or any member, officer, agent, or employee thereof, for personal injury or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of the authority or of any such member, officer, [*3]agent or employee thereof, or for any other alleged tort of the authority or of such member, officer, agency or employee thereof"



(Public Authorities Law § 1744 [1]), and to actions or proceedings:

"for any cause whatever, other than the one for personal injury, death, property damage or tort, which shall be governed by subdivision one of this section, relating to the design, construction, reconstruction, improvement, rehabilitation, repair, furnishing or equipping of educational facilities . . . against the authority or any member, officer, agent, or employee thereof"

(Public Authorities Law § 1744 [2]).

Hence, for the same reasons as discussed in Metropolitan Transportation Authority (94 NY2d at 159) in holding that Unconsolidated Law § 2501 controls the interest to be paid in condemnation actions, Public Authorities Law § 1744 (7), as part of the consent to suit statute, is inapposite to the instant constitutional claim for just compensation in this condemnation proceeding. Accordingly, in construing the language of Public Authorities Law § 1744 (7), the limitation on interest set forth therein must similarly be limited to actions against the Authority pursuant to the section, i.e., suits commenced in accordance with Public Authorities Law § 1744.

For the above discussed reasons, claimant's motion is granted and the Authority is directed to pay him interest at the rate of nine percent pursuant to Unconsolidated Laws § 2501 on the advance payment from the date of the taking to the date of payment.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.