IN RE: Application of the NEW YORK STATE URBAN DEVELOPMENT CORPORATION (2002)

Order and judgment (one paper), Supreme Court, New York County (Stanley Parness, J.), entered December 27, 2001, which, in a condemnation proceeding, insofar as appealed from, denied condemnor's motion to resettle a judgment, same court and Justice, entered March 2, 2001, awarding claimant “lawful interest per annum” from the date its property was seized, so as to award claimant prejudgment interest at the rate of 6% a year, and instead resettled the judgment so as to award claimant prejudgment interest at the rate of 9% a year, unanimously affirmed, without costs.   Appeal from the judgment entered March 2, 2001, unanimously dismissed, without costs, as superseded by the appeal from the aforesaid order and judgment (one paper).

We reject condemnor's argument that the virtually risk-free nature of a condemnation award warrants an interest rate in line with the rates paid by relatively risk-free short-term Federal debt securities, which, according to condemnor, during the years between the instant 1994 vesting and 2001 judgment, paid an average rate of less than 6%. Rather, the statutory maximum 9% rate should be considered the appropriate and reasonable interest rate so as to bring the award into accord with the constitutional requirement of just compensation (see, Matter of Metropolitan Trans. Auth. v. American Pen Corp., 94 N.Y.2d 154, 158, 701 N.Y.S.2d 301, 723 N.E.2d 50), absent a showing that all reasonable investment possibilities during the relevant period, private as well as public, yielded significantly lower rates (Auer v. State of New York, 283 A.D.2d 122, 727 N.Y.S.2d 507;  see also, Guido v. State of New York, 187 Misc.2d 647, 653, 722 N.Y.S.2d 694;  cf., Rodriguez v. New York City Hous. Auth., 91 N.Y.2d 76, 81, 666 N.Y.S.2d 1009, 689 N.E.2d 903, 139 L.Ed.2d 76).   Here, condemnor failed to rebut the presumptive reasonableness of the statutory maximum 9% rate.