| Rice v Valentine |
| 2010 NY Slip Op 06236 [75 AD3d 631] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Scott V. Rice et al., Appellants, v Samantha L. Valentineet al., Respondents. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered October 5, 2009, asdenied that branch of their motion to confirm an arbitrator's award dated April 29, 2009, whichwas for statutory prejudgment interest on the award.
Ordered that the order is affirmed insofar as appealed from, with costs.
On February 2, 2007, the plaintiff Scott V. Rice was injured when a car operated by thedefendant Samantha L. Valentine and owned by the defendant Laura Valentine (hereinaftertogether the defendants) ran a red traffic signal at the intersection of Albany Avenue and SunriseHighway in Suffolk County and collided with his car. Rice and his wife, suing derivatively(hereinafter together the plaintiffs), commenced this action, inter alia, to recover damages forpersonal injuries. The plaintiffs were awarded summary judgment on the issue of liability,without opposition, in October 2007. In January and February 2009, the parties negotiated theterms of an agreement to arbitrate the issue of damages, including the high-low parameters ofany arbitration award. The record reveals that, during the course of their negotiations, the partieswere aware of the plaintiffs' entitlement to prejudgment interest on any damages award in theevent the issue of damages were submitted to a jury (see CPLR 5002, 5004; Love vState of New York, 78 NY2d 540, 544 [1991]). The record also reveals that the partiesconsidered how an agreement to arbitrate the issue of damages might affect the issue of theplaintiffs' entitlement to prejudgment interest (cf. Grobman v Chernoff, 63 AD3d 786, 790 [2009], lv granted13 NY3d 714 [2009]; Matter of Aetna Cas. & Sur. Co. v Rosen, 233 AD2d 499[1996]). In February 2009, the parties agreed to submit the issue of damages to an arbitrator; thearbitrator's rules of procedure provided that no prejudgment interest would be awarded.Nevertheless, after the arbitrator issued his award, the plaintiffs, in their motion to confirm theaward (CPLR 7510), sought statutory prejudgment interest from October 16, 2007, the datesummary judgment was awarded. We find that under the circumstances here, the plaintiffswaived any right they had to prejudgment interest (cf. Grobman v Chernoff, 63 AD3d at790; Matter of Yeroush Corp. v Nhaissi, 164 AD2d 891 [1990], affd 78 NY2d873 [1991]). Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.