    09-1200-cv
    City of New York v. National Railroad Passenger Corporation



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
R ULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUM M ARY ORDER FILED AFTER J ANUARY
1, 2007, IS PERM ITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’S L OCAL R ULE
32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT , A PARTY M UST CITE EITHER THE F EDERAL
A PPENDIX OF AN ELECTRONIC DATABASE (W ITH THE NOTATION “ SUM M ARY OR DER ”). A PAR TY CITING A SUM M ARY ORDER M UST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


           At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 21 st day of April, two thousand and ten.

    PRESENT:          PIERRE N. LEVAL,
                      PETER W. HALL,
                      GERARD E. LYNCH,
                                       Circuit Judges.

    ----------------------------------------------------------------x
    City of New York,
                                                 Plaintiff-Appellee,

             -v.-                                                                       No. 09-1200-cv

    National Railroad Passenger Corporation,
                                       Defendant-Appellant.

    ----------------------------------------------------------------x

   Appearing for Appellant:                                LAW RENCE S. EBNER (Daniel Carrigan, Megan B.
                                                           Hoffman, McKenna Long & Aldridge LLP,
                                                           Washington, D.C.; Dennis M. Moore, National Railroad
                                                           Passenger Corp., Washington, D.C., on the brief),
                                                           McKenna Long & Aldridge LLP, Washington, D.C.

    Appearing for Appellee:                                 SCOTT SHORR , Senior Counsel (Leonard J. Koerner,
                                                            Barry P. Schwartz, on the brief), for Michael A.
                                                            Cardozo, Corporation Counsel of the City of New
                                                            York, New York, New York.


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       Appeal from two judgments of the United States District Court for the Eastern District of

New York (Townes, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,

AND DECREED that the decisions of the district court are AFFIRMED.

       National Railroad Passenger Corporation (“Amtrak”) appeals from an order granting

summary judgment in favor of appellee, the City of New York (“the City”), and holding that Amtrak

must reimburse the City for the City’s expenditures in removing Amtrak’s electrical facilities from

beneath City-owned bridges. Amtrak also appeals from a subsequent order granting the City post-

judgment interest on the amount owed to the City pursuant to New York C.P.L.R. §§ 5001(a) &

5004. In 2000, the City began a reconstruction project on a number of its bridges spanning Amtrak’s

Sunnyside Railyard in Queens, New York, and was thereby required to remove electrical facilities

owned by Amtrak that were attached to the bridges. The City moved in district court to recoup the

cost of removing Amtrak’s electrical facilities.

       Amtrak asserts that it is not liable for those costs. Amtrak first argues that a clause in the

deed that transferred title of the bridges from Amtrak’s predecessors in interest to the City (the

“1910 Deed”) burdens the City with the cost of removing Amtrak’s electrical facilities. See Special

Appx. at 8 (granting the City “as to each and every [viaduct and bridge] thereof, with a perpetual

easement and right to continue to maintain the same at its own expense.”) (emphasis added). In

response to the City’s argument that a separate, more explicit, clause in the 1910 Deed actually

burdens Amtrak with the cost of removal, Amtrak asserts that because its electrical facilities did not

interfere with the City’s use of the bridges for ‘street purposes,’ Amtrak was not liable for the cost

of their removal under the 1910 Deed. Amtrak further argues that New York real property law




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supports its interpretation of the 1910 Deed -- namely the general requirement in New York that a

dominant easement holder (here the City) bears the cost of repairs.

       Amtrak also argues in the alternative that the district court was without subject matter

jurisdiction to hear the instant dispute because under the Regional Rail Reorganization Act of 1973,

45 U.S.C. § 719(b)(2) & (e)(2) (the “Rail Act”), any action to “interpret, alter, amend, modify, or

implement” conveyance orders under the Rail Act are within the exclusive and original jurisdiction

of the United States District Court for the District of Columbia. 45 U.S.C. § 719(e)(2). In addition,

Amtrak asserts that two sections of the Rail Passenger Service Act expressly shield Amtrak from

any “tax, fee . . . or other charge” levied by a State or political subdivision, as well as from any

“State or other law related to rates, routes, or services.” See 49 U.S.C. § 24301(l) & (g). Finally,

Amtrak argues that even if it is liable for the cost of removing its electrical facilities from City

bridges, the City is not entitled to prejudgment interest on the award.

       Having reviewed de novo the record and the decisions of the district court, we affirm the

district court’s judgments for substantially the reasons stated in their thorough and well-reasoned

opinions. 1

       The judgments of the district court are AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




       1
         We have not considered the City’s argument, not raised in the district court, that under
City of New York v. Long Island R.R. Co., 248 A.D. 820 (N.Y. App. Div. 1936), aff’d, 272 N.Y.
658 (1936), it has no obligation to pay maintenance costs associated with the bridges. Greene v.
United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-established general rule that an
appellate court will not consider an issue raised for the first time on appeal.”).

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