Loretto v teleprompter8/17/2023 ![]() ) The Court of Appeals, although leaving intact the dismissal of the original complaint, retained jurisdiction over the matter to review whether the compensation fixed by the Commission constituted just compensation within the meaning of the Constitution (Loretto v Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143). 419, 425, 441.) On remand, the Court of Appeals, noting that the Supreme Court had not questioned the validity of Executive Law § 828 as an exercise of the State's police power, and that the court had specifically left open whether section 828 provided plaintiff a sufficient avenue to obtain compensatory relief, went on to hold that section 828 did in fact provide a means for plaintiff to obtain just compensation as it permitted plaintiff to submit a claim for reasonable compensation to the State Commission on Cable Television. ![]() (Loretto v Teleprompter Manhattan CATV Corp., 53 N.Y.2d 124, 151.) The United States Supreme Court reversed upon the "very narrow" holding that the "otherwise valid regulation so frustrates property rights that compensation must be paid." (Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. ![]() This court affirmed as did the Court of Appeals which, in essence, held that Executive Law § 828 did not authorize such interference with petitioner's property rights as would amount to a taking. Initially, plaintiff's complaint was dismissed by Special Term, which held on summary judgment that defendant's installation of its cable facilities on petitioner's building was indeed authorized by Executive Law § 828 1 and that such law was a valid exercise of the State's police power. She also alleged that defendant's use of her premises for its equipment, purportedly authorized by section 828 of the Executive Law, constituted a taking of her property without just compensation, and that she had been deprived of her property without due process of law. Plaintiff alleged that she had sustained some $1 million in damages as a result of defendant cable television company's installation upon the roof of her premises certain equipment necessary to provide cable TV service to one of her tenants and to tenants in adjoining buildings. This action, initially seeking recovery primarily for trespass, was commenced by the plaintiff in 1976. Accordingly, we adhere to our initial affirmance but for the reasons which follow. Although we think that Special Term correctly denied the motion for attorneys' fees, we think that the reasoning leading to that determination was erroneous in several respects, and unless clarified will lead to future confusion. ![]() The court did, however, suggest that although no notice to the class certified in this action was ever given, the class action might nevertheless remain viable and that attorneys' fees pursuant to CPLR 909 might eventually be awarded out of whatever judgment fund resulted after proceedings before the State Commission on Cable Television had run their course. In view of its ruling that attorneys' fees would eventually be proper under 42 USC § 1988, the court found it unnecessary to reach the question of whether attorneys' fees might also be awarded pursuant to CPLR 909. Plaintiff's motion for a fee award was denied only because, in the court's view, the impact of plaintiff's lawsuit could not yet be evaluated. In passing upon the motion, Special Term held that the plaintiff "must be deemed a prevailing party" within the meaning of 42 USC § 1988 and that as a prevailing party, plaintiff might eventually be entitled to an award of attorneys' fees to be assessed against defendants and the intervenor. The order had been affirmed, without opinion. Reargument is granted in this matter to clarify the basis of our affirmance of the appealed order denying as "premature" plaintiff's motion to recover attorneys' fees. and the City of New York and of intervenor State of New York for leave to appeal are granted to the extent of deeming their motions as ones for reargument which we grant, and upon reargument we adhere to our affirmance of the appealed order which denied plaintiff's motion for attorneys' fees, but do so for the reasons stated hereinafter, without costs. The motion of plaintiff Jean Loretto for reargument or for leave to appeal is denied in its entirety, without costs.
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