| Baer v Anesthesia Assoc. of Mount Kisco, LLP |
| 2008 NY Slip Op 10110 [57 AD3d 817] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Barry A. Baer, M.D., P.C., Plaintiff, and Andrew P. Duffy, M.D.,P.C., Respondent, v Anesthesia Associates of Mount Kisco, LLP,Appellant. |
—[*1] McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia W. Gurahian ofcounsel), for respondent.
In an action to recover damages for breach of contract, in which the defendantcounterclaimed to recover damages for breach of contract, breach of fiduciary duty, and breach ofa covenant of good faith and fair dealing, the defendant appeals, as limited by its brief, from somuch of a judgment of the Supreme Court, Westchester County (Bellatoni, J.), dated June 7,2007, as, upon a jury verdict, is in favor of the plaintiff Andrew P. Duffy, M.D., P.C., and againstit in the principal sum of $83,148, plus interest computed at $21,401.97 through March 23, 2007,and is in favor of it and against the plaintiff Andrew P. Duffy, M.D., P.C., on its counterclaims inthe sum of only $250,000, and calculated the per diem interest on the award of $250,000 at$58.66.
Ordered that the judgment is modified, on the law and the facts, (1) by deleting the sum of$21,401.97 and substituting therefor the sum of $17,589, and (2) by deleting the sum of $58.66and substituting therefor the sum of $61.64; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements.
The Supreme Court improperly precluded the introduction into evidence of a certaindocument turned over to the defendant's attorneys during discovery, since the evidence in therecord did not establish that the document was covered by an attorney-client privilege. Althoughthe document purportedly was faxed by Northern Westchester Hospital Association (hereinafterthe Hospital) to its attorney, no evidence was submitted to establish that the document was in factfaxed to the attorney, and the Hospital's representative could not recall when he disclosed thedocument to the plaintiff Andrew P. Duffy, M.D., P.C. (hereinafter Dr. Duffy), thereby waivingany confidentiality privilege (see New York Times Newspaper Div. of N.Y. Times Co. vLehrer McGovern [*2]Bovis, 300 AD2d 169, 172 [2002]).
Although the document was improperly excluded from admission into evidence, the errordoes not require reversal. Dr. Duffy and the Hospital's representative, by their own admissions,provided uncontroverted evidence of most of the items referred to in the document. Furthermore,the defendant's claim that the reference in the document to formation of a "vanilla group" toreplace the defendant was evidence of racial or ethnic discrimination is pure speculation.Moreover, a cause of action alleging racial discrimination was not asserted in AnesthesiaAssociates of Mount Kisco, LLP's counterclaims. In any event, since the defendant prevailed onits counterclaims and its demand for damages, admission of the document in evidence or furtherinquiry as to its contents could not have affected the verdict (see Shapiro v Ultrasonic Corp.of Am., 104 AD2d 363 [1984]).
Contrary to the defendant's contention, as this is an action to recover damages for breach ofcontract, the Supreme Court properly awarded the plaintiff prejudgment interest at the statutoryrate of 9% per annum (see CPLR 5001 [a]; 5004; Astrada v Archer, 51 AD3d 954, 955 [2008]; Zimmerman vTarshis, 300 AD2d 477, 478 [2002]). Such interest, however, "shall be computed from theearliest ascertainable date the cause of action existed . . . [or] a single reasonableintermediate date" (CPLR 5001 [b]). The $83,148 awarded to the plaintiff was based on a buyoutschedule payable in installments from on or about October 1, 2003 through January 1, 2006.Under the circumstances, it is appropriate to compute interest based upon a reasonableintermediate date of November 15, 2004 (see 155 Henry Owners Corp. v Lovlyn Realty Co.,231 AD2d 559 [1996]). Since the per diem interest on the award of $83,148 is $20.50,interest in the amount of $17,589 should have been awarded from November 15, 2004 untilMarch 23, 2007.
We agree with the defendant's contention that the Supreme Court miscalculated per dieminterest to which the defendant was entitled on its award of $250,000 subsequent to March 23,2007, as $58.66 rather than $61.64 (see CPLR 5004).
The defendant's remaining contentions are without merit. Skelos, J.P., Angiolillo, Balkin andBelen, JJ., concur.