Opinion
January 25, 1996
Appeal from the Supreme Court, New York County (Martin Evans, J.).
Claimant failed to articulate his present claim that the Superintendent's determination constituted an unconstitutional taking of property, and the issue is therefore improperly raised on appeal ( see, Melahn v Hearn, 60 N.Y.2d 944, 945). Were we to reach the argument, we would find claimant's contention to be without merit. There is no constitutional right to interest payments. That right is purely statutory and in derogation of the common law ( see, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 851). Insurance Law § 7434 (b) expressly prohibits the payment of interest to a creditor due to delay in receiving payment of the principal claim, unless the liquidated company has sufficient assets to pay all creditors. Furthermore, the legislative history indicates that the precursor to Insurance Law § 7434 (b), which had substantially the same language, was enacted specifically to overrule Matter of Consolidated Indem. Ins. Co. ( 256 App. Div. 604, affd 281 N.Y. 680), which allowed a creditor to recover interest on his claim where, as here, the Superintendent had unsuccessfully litigated the claim.
Concur — Rosenberger, J.P., Nardelli, Williams, Tom and Mazzarelli, JJ.