| Retirement Accounts, Inc. v Pacst Realty, LLC |
| 2008 NY Slip Op 02815 [49 AD3d 846] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Retirement Accounts, Inc., et al., Respondents, v PacstRealty, LLC, Appellant, Edward F. Myers et al., Respondents, et al.,Defendants. |
—[*1] Jason Chang, Brooklyn, N.Y., for plaintiffs-respondents, and Vittoria & Purdy, New York,N.Y. (John G. Lipsett of counsel), for defendants-respondents (one brief filed).
In an action to foreclose a mortgage, the defendant Pacst Realty, LLC, appeals, as limited byits brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), datedJanuary 5, 2007, as, in effect, upon reargument, adhered to a prior determination in an orderdated May 1, 2006, granting the plaintiffs' motion and the cross motion of thedefendants-respondents to confirm a referee's report determining that the total sum due on amortgage, as of March 17, 2005, was $660,400, and confirming the referee's report.
Ordered that the order is affirmed insofar as appealed from, with costs.
Although the Supreme Court stated that the appellant's motion for leave to reargue wasdenied, the court, in fact, considered the merits of the underlying motion and cross motion andadhered to its original determination. Thus, contrary to the contention of the plaintiffs and thedefendants-respondents, the order dated January 5, 2007 is appealable (see Noble v Noble, 43 AD3d 893[2007]; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565, 566 [2000]; Matterof Sorg v Zoning Bd. of Appeals of Vil./Town of Mount Kisco, 248 AD2d 622 [1998]).
Generally, once a judgment is entered, the interest rate set forth in CPLR 5004 applies(see Marine Mgt. v Seco Mgt., 176 AD2d 252, 253 [1991], affd 80 NY2d 886[1992]). However, where there is a clear, unambiguous, and unequivocal expression to pay aninterest rate higher than the statutory [*2]interest rate until thejudgment is satisfied, the contractual interest rate is the proper rate to be applied (see C & MAir Sys. v Custom Land Dev. Group II, 262 AD2d 440 [1999]; Banque Nationale DeParis v 1567 Broadway Ownership Assoc., 248 AD2d 154, 155 [1998]; ERHAL HoldingCorp. v Rusin, 229 AD2d 417, 419 [1996]; Marine Mgt. v Seco Mgt., Inc., 176AD2d at 254, affd 80 NY2d 886 [1992]). Here, as the Supreme Court correctlyconcluded, the mortgage note and agreement clearly, unambiguously, and unequivocallyexpressed that, in the event of default, the agreed-upon rate of interest, 24%, was to govern overthe statutory rate of interest from that time through the entry of judgment up until actualsatisfaction.
Contrary to the appellant's contention, there is no evidence that the plaintiffs engaged ininequitable or dilatory conduct that would preclude them from their entitlement to interest earnedon the unpaid judgment (see BankersTrust Co. of Cal., N.A. v Brunson, 40 AD3d 672 [2007]; Matter of Matra Bldg. Corp. v Kucker,19 AD3d 496 [2005]; Greenberg v Greenberg, 269 AD2d 354, 355 [2000]; cf.ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]). Mastro, J.P., Covello, Eng andBelen, JJ., concur.