| Matter of Goldberger v Fischer |
| 2008 NY Slip Op 07130 [54 AD3d 955] |
| September 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Anshil Goldberger, Appellant, v AronFischer et al., Respondents. |
—[*1] Moritt Hock Hamroff & Horowitz LLP, Garden City, N.Y. (William P. Laino of counsel), forrespondents.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the appeals arefrom (1) so much of an order of the Supreme Court, Kings County (Knipel, J.), dated February28, 2007, and (2) so much of a judgment of the same court entered March 16, 2007, as, upon theorder, failed to include prejudgment interest on the award.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, and the matter isremitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgmentwhich includes an award of prejudgment interest, and the order dated February 28, 2007 ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the petitioner.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). [*2]The issue raised on the appeal fromthe order is brought up for review and has been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The petitioner was entitled to prejudgment interest from the date of the arbitration award(see Matter of Meehan v Nassau Community Coll., 242 AD2d 155, 159-160 [1998];Matter of Aetna Cas. & Sur. Co. v Mantovani, 240 AD2d 566, 569 [1997]; Matter ofAetna Cas. & Sur. Co. v Rosen, 233 AD2d 499, 500 [1996]; Murphy v Wack, 177AD2d 382 [1991]). CPLR 5002 provides that interest "shall be recovered upon the total sumawarded . . . from the date the verdict was rendered or the report or decision wasmade to the date of entry of final judgment" (see Love v State of New York, 78 NY2d540, 545 [1991]; Van Nostrand vFroehlich, 44 AD3d 54 [2007]). "Interest under CPLR 5002 is a matter of right and isnot dependent upon the court's discretion or a specific demand for it in the complaint" (Matterof Kavares [Motor Veh. Acc. Indem. Corp.], 29 AD2d 68, 70-71 [1967], affd 28NY2d 939 [1971] [internal quotation marks omitted]; see e.g. Matter of Lyons v NationalUnion Fire Ins. Co. of Pittsburgh, 208 AD2d 540, 540-541 [1994]). Contrary to therespondents' contentions, an exception to this statutory mandate is not warranted by thecircumstances of this case (see Love v State of New York, 78 NY2d 540, 545 [1991]; Van Nostrand v Froehlich, 44 AD3d54 [2007]; cf. Manufacturer's &Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583 [2007]). Rivera, J.P., Lifson,Santucci and Miller, JJ., concur.