pre-judgment interest: CPLR 5001(a)

Scotti v Barrett, 2018 NY Slip Op 07477 [2d Dept. 2018]

On a prior appeal in this action, this Court awarded summary judgment to the plaintiff, inter alia, on the cause of action to recover damages for conversion in the sum of $69,500, representing the amount of estate funds that were wrongfully converted by the defendant Rick Barrett. The Supreme Court subsequently entered an amended judgment that awarded the plaintiff the sum of $69,500 but failed to award prejudgment interest at the statutory rate of 9% per annum on that sum. The plaintiff appeals from so much of the amended judgment as failed to award prejudgment interest at the statutory rate on the $69,500 damages award.

“The usual measure of damages for conversion is the value of the property at the time and place of conversion, plus interest” (Fantis Foods v Standard Importing Co., 49 NY2d 317, 326; see Hoffman v Dorner, 86 AD2d 651). Indeed, CPLR 5001(a) provides for the award of prejudgment interest upon sums awarded for the deprivation of or interference with another’s property, and relevant case law clearly establishes that such interest is properly awarded as part of the recovery on a cause of action sounding in conversion (see 23 E. 39th St. Mgt. Corp. v 23 E. 39th St. Dev., LLC, 134 AD3d 629, 632; Hunt v Hunt, 13 AD3d 1041, 1043; Zimmerman v Tarshis, 300 AD2d 477, 478; Eighteen Holding Corp. v Drizin, 268 AD2d 371, 372; Phillips v Catania, 188 AD2d 1029, 1030). Moreover, interest is to be awarded at the statutory rate of 9% per annum (see CPLR 5004; Zimmerman v Tarshis, 300 AD2d at 478; Phillips v Catania, 188 AD2d at 1030; Long Playing Sessions v Deluxe Labs., 129 AD2d 539, 540).

Accordingly, we remit the matter to the Supreme Court, Nassau County, for the entry of a second amended judgment that includes an award of prejudgment interest at the statutory rate of 9% per annum on the damages awarded in favor of the plaintiff on the cause of action to recover damages for conversion.

CPLR 5001 and 5002

Kachkovskiy v Khlebopros, 2018 NY Slip Op 05671 [2d Dept 2018]

We agree with the Supreme Court's determination that the plaintiff was not entitled to prejudgment interest. CPLR 5001(a) provides that interest shall be recovered upon a sum awarded for a breach of contract. CPLR 5001 further mandates that "[i]nterest shall be computed from the earliest ascertainable date the cause of action existed" (CPLR 5001[b]). "Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" (CPLR 5001[b]; see Baer v Anesthesia Assoc. of Mount Kisco, LLP, 57 AD3d 817, 819; Hayden v P. Zarkadas, P.C., 18 AD3d 500, 501; 155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559, 560-561). CPLR 5001 further provides that "[t]he date from which interest is to be computed shall be specified in the verdict, report or decision" (CPLR 5001[c]). With limited exception, "[i]f a jury is discharged without specifying the date, the court upon motion shall fix the date" (id.). The party seeking prejudgment interest bears the burden of demonstrating the date from which interest should be computed (see Matter of Kelligrew, 63 AD3d 1064, 1066; see also Siegel, NY Prac § 411 at 720 [5th ed 2011]).

Here, the plaintiff failed to demonstrate when the damages were incurred. Under the particular circumstances of this case, the Supreme Court's determination that the damages were not incurred until the jury rendered its verdict was warranted (see generally Lee v Joseph E. Seagram & Sons, Inc., 592 F2d 39 [2d Cir]; accord Siegel, NY Prac § 411 at 720 [5th ed]; cf. Matter of Kelligrew, 63 AD3d at 1066). Accordingly, we agree with the court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5001.

We also agree with the Supreme Court's determination to deny that branch of the plaintiff's posttrial cross motion which sought prejudgment interest pursuant to CPLR 5002. That statute provides that "[i]nterest shall be recovered upon the total sum awarded . . . from the date the verdict was rendered . . . to the date of entry of final judgment" (CPLR 5002). Here, however, the defendant tendered the total amount due under the verdict, $81,000, on the same date that the verdict was returned. Under the circumstances, the defendant's tender of the verdict amount prevented the accrual of interest under CPLR 5002 (see O'Rourk v Berner, 249 AD2d 975, 976; Meiselman v Allstate Ins. Co., 197 AD2d 561, 561-562; see also 10-5001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 5001.10).

Furthermore, the Supreme Court properly declined to award the plaintiff an attorney's [*4]fee. "Under the general rule, the prevailing party in litigation may not collect his or her counsel fees unless supported by statute, court rule, or written agreement of the parties" (Rosenthal v Rosenthal, 151 AD3d 773, 774; see Markham Gardens, L.P. v 511 9th, LLC, 143 AD3d 949, 953). Here, the plaintiff failed to establish that he was entitled to recover an attorney's fee under the parties' agreements (see Fitzpatrick v Animal Care Hosp., PLLC, 104 AD3d 1078, 1081). Moreover, the court properly concluded that the plaintiff did not receive substantial relief, so as to warrant the conclusion that he prevailed on a central claim (see Chainani v Lucchino, 94 AD3d 1492, 1494).

Pre (CPLR § 5001) and Post (CPLR § 5003) Judgment Interest

CPLR § 5001 Interest to verdict, report or decision

CPLR § 5003 Interest upon judgment

Ficus Invs., Inc. v Private Capital Mgt., LLC, 2010 NY Slip Op 02653 (App. Div., 1st, 2010)

Since the sum was not awarded because of breach of a contract, Donovan is not entitled [*2]to pre-judgment interest pursuant to CPLR 5001. Nor is Donovan entitled to post-judgment interest pursuant to CPLR 5003, since no money judgment was entered against plaintiffs.