| Mizuno v Fischoff & Assoc. |
| 2011 NY Slip Op 01811 [82 AD3d 849] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Nori Mizuno, Respondent-Appellant, v Fischoff &Associates et al., Appellants-Respondents. |
—[*1] Joel J. Ziegler, P.C., Smithtown, N.Y., for respondent-appellant.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal, aslimited by their brief, from so much of a judgment of the Supreme Court, Suffolk County(Whelan, J.), entered March 25, 2010, as, upon a decision made after a nonjury trial, determinedthat the plaintiff is entitled to 100% of the lost equity in the subject property and is in favor of theplaintiff and against them in the principal sum of $318,227.53, and the plaintiff cross-appealsfrom so much of the same judgment as awarded prejudgment interest only from May 1, 2003.
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that judgment is reversed insofar as cross-appealed from, on the law, and the matteris remitted to the Supreme Court, Suffolk County, for a new calculation and award ofprejudgment interest in accordance herewith, and for the entry of an appropriate amendedjudgment; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
As a result of the defendants' legal malpractice, which is not contested on this appeal, theplaintiff's house was sold at a foreclosure sale on April 4, 2002. The plaintiff and his wife heldtitle to the subject property as tenants by the entirety and were, thus, each seized of the wholeproperty (see Kahn v Kahn, 43 NY2d 203, 206-207 [1977]; Stelz v Shreck, 128NY 263, 266 [1891]; Paterno v CYC,LLC, 46 AD3d 788, 789 [2007]). Since the plaintiff owned the entire property, theSupreme Court properly held that he was entitled to recover 100% of the lost equity in theproperty.
We agree with the plaintiff's contention that May 1, 2003, is not a "reasonable intermediatedate" from which to calculate prejudgment interest (CPLR 5001 [b]). Instead, we find that April4, 2002, is a "single reasonable intermediate date" (CPLR 5001 [b]) from which to calculateprejudgment interest on the damages awarded in this case. Accordingly, we remit the matter tothe Supreme Court, Suffolk County, for a new calculation and award of prejudgment interest, andfor the entry of an appropriate [*2]amended judgment. Angiolillo,J.P., Hall, Roman and Cohen, JJ., concur. [Prior Case History: 26 Misc 3d 1211(A), 2010NY Slip Op 50064(U).]