| Berry v Williams |
| 2011 NY Slip Op 06467 [87 AD3d 958] |
| September 13, 2011 |
| Appellate Division, Second Department |
| David Berry et al., Respondents-Appellants, v Randolph L.Williams, Individually and as Executor of James R. Williams, Deceased, et al.,Appellants-Respondents. |
—[*1] Edward H. Odesser, LLC, White Plains, N.Y. (Gary J. Langer of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, onthe ground of inadequacy, from a judgment of the Supreme Court, Dutchess County (Sproat, J.),dated June 23, 2009, which, upon a stipulation dated January 24, 2004, a stipulation datedJanuary 19, 2006, a decision of the same court dated February 28, 2007, made after a nonjurytrial on the issue of damages, a decision of the same court dated May 3, 2007, an order of thesame court dated May 7, 2007, denying their motion pursuant to CPLR 4404 (b) to set aside thedecision dated February 28, 2007, and a decision of the same court dated November 21, 2007, isin favor of them and against the plaintiff on their counterclaim in the principal sums of only (a)$810,359.02, representing awards of $56,086 for repayment of capital investment, $250,000 forrepayment of a 1994 loan, $210,000 for repayment of a separate loan, and $344,273.02 forrepayment of another separate loan, (b) $289,355 for the value of excavation work performed bythem, (c) $97,801.34 plus certain uncalculated prejudgment interest on that amount forreimbursement from a court-mandated, interest-bearing escrow fund, and (d) $150,000 forrepayment of a 1993 promissory note, for a total sum of only $1,347,515.36 plus the uncalculatedprejudgment interest on the award of $97,801.34, and awarded them only limited predecisioninterest on portions of the total sum; and the plaintiffs cross-appeal, as limited by their notice ofcross appeal and brief, from so much of the same judgment as awarded the defendants theprincipal sums of $210,000, $344,273.02, $289,355, and $97,801.34 plus certain uncalculatedprejudgment interest on that sum.
Ordered that the judgment is modified, on the law, (1) by deleting from the first decretalparagraph thereof the words "EIGHT HUNDRED TEN THOUSAND THREE HUNDREDFIFTY-NINE DOLLARS AND 02/100 ($810,359.02) without interest" and substituting thereforthe words "SIX HUNDRED FIFTY THOUSAND THREE HUNDRED FIFTY-NINEDOLLARS AND 02/100 ($650,359.02) with prejudgment interest at the statutory rate of 9% perannum only from February 28, 2007, and TWO HUNDRED TEN THOUSAND and 00/100($210,000) with prejudgment interest at the contractual rate of 10% per annum from February 2,2006," (2) by deleting from the second decretal paragraph thereof the words "TWO HUNDREDSIXTY-THREE THOUSAND FIFTY DOLLARS AND 00/100 ($263,050.00) plus an additionalten percent with interest" and substituting therefor the words "TWO HUNDRED EIGHTY-NINETHOUSAND THREE HUNDRED FIFTY-FIVE DOLLARS AND 00/100 ($289,355) withprejudgment interest at the statutory rate of 9% per annum from February 2, 1998," and (3) bydeleting the third decretal paragraph thereof awarding the defendants $97,801.34 plus 4.89% ofthat sum, representing a certain [*2]portion of the interest accruedon a court-mandated, interest-bearing escrow account; as so modified, the judgment is affirmedinsofar as appealed and cross-appealed from, without costs or disbursements, and the matter isremitted to the Supreme Court, Dutchess County, for calculation of the interest due in accordanceherewith and the entry of an appropriate amended judgment thereafter.
On July 15, 1993, David Berry and Joseph Governale borrowed the principal sum of$150,000 from J&J Log & Lumber Corp. (hereinafter J&J) to purchase approximately 84 acres ofvacant land in Ulster County (hereinafter the property). At that time, J&J was owned by JamesWilliams and his son, Randolph Williams. The loan was secured by a mortgage on the property.
On April 1, 1994, Berry, Governale, James Williams, and Randolph Williams incorporatedWillberry Corporation (hereinafter Willberry) for the purpose of developing an assisted-livingfacility on the property (hereinafter the Willberry project); they also executed a shareholders'agreement to govern the corporation (hereinafter the 1994 Agreement). Pursuant to the 1994Agreement, Berry and Governale borrowed an additional $250,000 from James Williams andRandolph Williams, secured by a second mortgage on the property, and thereafter sold theproperty to Willberry, subject to the first and second mortgages. On March 12, 1998, JamesWilliams and Berry amended the 1994 Agreement in certain respects by executing a documententitled "Modification of Distribution of Funds" (hereinafter the 1998 Modification Agreement).
In or about November 15, 2000, Berry, Governale, and Willberry commenced this actionagainst Randolph Williams, individually and as a coexecutor of the estate of James Williams,who had died on July 9, 1998, as well as against Irving Schwartz and Nancy Viola, ascoexecutors of the estate of James Williams. In essence, the plaintiffs contended that thedefendants breached the 1994 Agreement, as amended by the 1998 Modification Agreement, byceasing to contribute funds to develop the Willberry project.
On January 24, 2004, Randolph Williams and Berry entered into an oral stipulation ofsettlement that was placed on the record in open court, which, inter alia, provided that they wouldattempt to sell the property, which was Willberry's only asset, as quickly as possible, and thendissolve Willberry. On January 19, 2006, Randolph Williams and Berry entered into another oralstipulation of settlement that was placed on the record in open court, in which they agreed to,among other things, the actual sale of the property and to certain preliminary disbursements ofthe proceeds of the sale. On February 2, 2006, Willberry sold the property for the sum of $4.5million. After the parties paid certain closing expenses, they distributed the sum of $1,410,043.08to Randolph Williams, distributed the sum of $798,277.96 to Berry and Governale, and placed $2million in an interest-bearing escrow account to await a final judicial determination on thedisposition of the proceeds of the sale.
After protracted motion practice and five appeals, all of which were dismissed on variousprocedural grounds or for failure to prosecute, the defendants appeal from the judgment enteredin the action, and the plaintiffs cross-appeal from portions of the judgment, which, among otherthings, awarded amounts that the defendants were entitled to receive from the proceeds of thesale. We modify.
Initially, CPLR 5019 (a) permits this Court to cure any "mistake, defect or irregularity" in ajudgment, including mathematical errors in calculation (see Freedman v City of NewRochelle, 274 AD2d 447, 448 [2000]). Here, the judgment recited that the Supreme Courthad previously determined to award the defendants the principal sums of $56,086, $250,000,$210,000, and $344,273.02, and aggregated these awards in the first decretal paragraph, yeterroneously calculated the sum of these awards to be $810,359.02, rather than $860,359.02,which is the correct amount. Moreover, "[a] judgment . . . must conform strictly tothe court's decision. Where there is an inconsistency between a judgment . . . andthe decision upon which it is based, the decision controls" (Curry v Curry, 14 AD3d 646, 647 [2005] [citations omitted]). Here,in one of the posttrial decisions upon which the judgment was based, the Supreme Court recited,among other things, that the award of $210,000 was to be with interest from the date of thedecision. The first decretal paragraph of the judgment, however, awarded the sum of$810,359.02—in which the award of $210,000 was subsumed—without interest.Accordingly, although we are ultimately required, under [*3]thecircumstances of this case, to award different rates of interest over different periods of time inconnection with the several components of the award of $860,359.02, we take as our startingpoint the ministerial correction of the first decretal paragraph of the judgment to reflect thedecision of the Supreme Court to award the defendants the sum of $860,359.02, withprejudgment interest at the statutory rate of 9% per annum on the entirety of that sum, only fromFebruary 28, 2007, the date of the decision (see CPLR 5002).
That said, as a general rule, we do not consider an issue on a subsequent appeal which wasraised or could have been raised on an earlier appeal which was dismissed for lack ofprosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v NationalGrange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). Theissues the defendants raise could have been raised on the defendants' prior appeal from an orderdated May 3, 2007, denying their motion pursuant to CPLR 4404 (b) to set aside the decisiondated February 28, 2007, which was dismissed by decision and order on motion of this Courtdated March 4, 2008, for failure to prosecute in accordance with the rules of this Court.Nevertheless, under the circumstances of this case, we exercise our discretion to determine theseissues on the instant appeal (see Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999];Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; McMahan v McMahan, 66 AD3d969, 969 [2009]; cf. Utility AuditGroup v Apple Mac & R Corp., 59 AD3d 707, 708 [2009]).
As noted above, the Supreme Court erred in declining to include, in the judgment, interest inconnection with the award of the principal sum of $860,359.02. Of that award, the sum of$650,359.02 should have accrued statutory interest at the rate of 9% per annum "from the datethe . . . decision was made to the date of entry of final judgment" (CPLR 5002).Accordingly, we modify the judgment to reflect the proper award of prejudgment interest on thatsum. With respect to the remaining $210,000 subsumed in the award of $860,359.02, theSupreme Court also erred in declining to include, in the judgment, the proper prejudgmentinterest in connection with that award which, here, had been fixed pursuant to contract at a rategreater than the statutory rate. The sum of $210,000 reflected an amount loaned to the plaintiffDavid Berry by the defendants. Contrary to the plaintiffs' contention, the Supreme Court'sdetermination of that principal sum "was supported by the evidence and should not be disturbed"(Rockland Dev. Assoc. v State of NewYork, 15 AD3d 381, 382 [2005]; see American Psych Sys. v Options Ind. PracticeAssn., 276 AD2d 654, 655 [2000]). Moreover, pursuant to the 1998 ModificationAgreement, Berry was required to repay the loan, plus 10% interest, in the event that the propertywas sold. Consequently, the Supreme Court should have awarded the defendants prejudgmentinterest at the contractual rate of 10% per annum on the award of $210,000, from February 2,2006, the date that the property was sold (see Winter v Brown, 85 AD3d 773 [2011]), and we modify thejudgment accordingly.
The Supreme Court also erred in declining to award prejudgment interest in connection withthe award of the principal sum of $289,355. That sum reflected the total amount owed by theplaintiffs pursuant to an agreement (hereinafter the cost-plus agreement), wherein the plaintiffswere provided with excavation services in exchange for payment of "the actual costs incurred. . . plus ten (10%) percent." Contrary to the plaintiffs' contention, the SupremeCourt's determination of that principal sum "was supported by the evidence and should not bedisturbed" (Rockland Dev. Assoc. v State of New York, 15 AD3d at 382; seeAmerican Psych Sys. v Options Ind. Practice Assn., 276 AD2d at 655). However, thecost-plus agreement provided that payment was due in full upon completion of the work.Accordingly, the Supreme Court should have awarded the defendants interest at the statutory rateof 9% per annum from "the earliest ascertainable date the cause of action existed" (CPLR 5001[b]; see Tesser v Allboro Equip.Co., 73 AD3d 1023, 1027-1028 [2010]) which, here, was February 2, 1998.
The provision in the judgment directing the plaintiffs to pay the defendants the total sum of$97,801.34 with certain prejudgment interest represented the amount to be paid to the defendantsfrom a court-mandated, interest-bearing escrow fund, which held the remainder of the proceedsof the February 2, 2006, sale of the subject property. Since the calculation of this amount wasbased upon awards now modified by this decision and order, the third decretal paragraph of thejudgment, awarding the defendants $97,801.34 plus certain prejudgment interest, must bedeleted.
The parties' remaining contentions are without merit.[*4]
Accordingly, the matter must be remitted to the SupremeCourt, Dutchess County, for calculation of the interest due on the awards in accordance herewith,and the entry of an appropriate amended judgment thereafter. Dillon, J.P., Eng, Sgroi and Miller,JJ., concur.