Opinion
401164/08.
August 10, 2009.
This is METROPOLITAN TRANSPORTATION AUTHORITY'S (MTA) motion to modify this Court's order dated May 12, 2009, to compel 192 BROADWAY JEWELERS, INC. d/b/a RENAISSANCE JEWELERS (Claimant) to remit $89,375.70 plus interest.
Facts
The MTA acquired title to Block 79, Lot 15, as designated in the City Tax Map for the Borough of Manhattan, on March 29, 2006. Claimant filed a Notice of Claim with respect to its fixtures. MTA made an initial payment to Claimant, which was received on July 26, 2006 in the principal amount of $46,435 plus $2, 2447.73 in interest.
On August 11, 2006, the MTA Claimant, and Mr. Robert. Gottlieb [Claimant's attorney] of the Law Firm Goldstein, Goldstein, Rikon and Gottlieb, P.C., entered into an agreement (Agreement). The Agreement provided that MTA would make an additional advance payment of $95,000 to secure Claimant's agreement to vacate the premises by a date certain. The Agreement also provided that if the Court's final award was less than $95,000 above the initial advance payment, Claimant would repay MTA the difference along with interest. Paragraph 4 of the Agreement states:
4. MTA will pay Renaissance Jewelers on or before the Penalty Date $95,000 as an additional advance payment, with interest at 9% from the Vesting Date until the Penalty Date: provided however, that Renaissance Jewelers and the Law Firm shall pay back to the MTA: (I) the amount, if any, above the principal of the final fixture award due Renaissance Jewelers is less than $95,000 above the principal amount of the initial advance payment and (ii) the interest paid by MTA to Renaissance Jewelers on any such amount.
(MTA Ex. C [ bold emphasis added]).
Pursuant to the Agreement, the MTA made the additional advance payment to Claimant on September 7, 2006. Claimant received $95,000 plus $3, 982.19 in interest.
A trial was conducted to determine the value of the fixtures. This Court rendered its decision determining that the value of the fixtures was $55,645 and directed the parties to Settle the Judgment.
Prior to the Judgment being settled, the MTA brought: this motion to compel Claimant to payback overpayments made by the MTA in the amount of $85,780 plus $3,595.70 in interest: pursuant to the Agreement.
Claimant argues that this motion is barred by res judicata.
Discussion
At the time of trial, this Court was unaware of the Agreement between the parties prior to this motion being made by the MTA and therefore gave no consideration to the terms entered into between the MTA, Claimant and Claimant's attorney.
Eminent Domain Procedure Law (EDPL) § 304[H] provides that:
When an advance payment to a condemnee made pursuant to this section by the condemnor exceeds the award of the court for that property, the court shall, on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate interest. Such motion shall be made on notice served within thirty days after delivery to the condemnor of the decision of the court making the award.
(EDPL § 304[H])
It follows that the MTA is entitled to the difference in the principal amount between the advance payment and the final award as determined by this Court and that the decision dated May 12, 2009 should be modified accordingly.
Accordingly, it is
ORDERED that this Court's decision dated May 12, 2009 is modified to the extent that Claimant is directed to remit MTA's overpayments in the amount of $89,375.70 plus interest at a rate of 9%; and it is further
ORDERED that the parities are to settle judgment providing for an award in favor of the MTA as outlined herein.
This memorandum opinion constitutes the decision and order of the Court.