| Gamman v Silverman |
| 2016 NY Slip Op 00331 [135 AD3d 814] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| Joan D. Gamman, Respondent-Appellant, v JillSilverman, Appellant-Respondent. |
Michael B. Schulman & Associates, P.C., Melville, NY (Joseph L. Vitulli ofcounsel), for appellant-respondent.
Amy S. Nord, Valley Stream, NY, for respondent-appellant.
In an action, inter alia, to impose a constructive trust upon certain real property, thedefendant appeals, as limited by her brief, from stated portions of an order of theSupreme Court, Nassau County (Woodard, J.), entered November 27, 2013, which, interalia, granted that branch of the plaintiff's motion which was to direct the defendant'sattorney to pay the plaintiff the sum of $120,819.31, together with interest accumulatedthereon from November 10, 2010, up to the date of full payment, and the plaintiffcross-appeals, as limited by her brief, from so much of the same order as, in effect,denied her application in her reply papers, in effect, to direct the defendant's attorney topay her additional interest accumulating during the period from May 28, 2010, toNovember 10, 2010.
Ordered that the cross appeal is dismissed, without costs or disbursements; and it isfurther,
Ordered that the order is affirmed insofar as reviewed, without costs ordisbursements.
The portion of the order cross-appealed from does not decide a motion made onnotice. No appeal lies as of right from an order which does not decide a motion made onnotice (see CPLR 5701 [a] [2]). No application was made for leave to appeal,and, under the circumstances of this case, we decline to grant leave to appeal on our ownmotion (see Istomin vIstomin, 130 AD3d 575 [2015]; Strunk v New York State Bd. of Elections, 126 AD3d 777,778 [2015]; Matter ofKiriakoula C., 112 AD3d 821 [2013]). Accordingly, the cross appeal must bedismissed.
The plaintiff commenced this action, inter alia, to impose a constructive trust uponcertain real property. The property was sold during the pendency of the action, and,pursuant to a stipulation of the parties, after the sale, the net proceeds were placed by thedefendant's attorney into an interest-bearing attorney escrow account "until an order ofthe court or written agreement between the parties." A judgment, dated November 10,2010, was entered in the action in favor of the plaintiff and against the defendant in thetotal sum of $120,819.31. In a decision and order dated [*2]September 19, 2012, this Court affirmed the judgment (see Gamman v Silverman, 98AD3d 995 [2012]).
In April 2013, the plaintiff moved, among other things, to direct the defendant'sattorney to pay the plaintiff, out of the escrow account, the sum of $120,819.31, togetherwith interest accumulated thereon from November 10, 2010, up to the date of fullpayment. The Supreme Court properly granted this branch of the plaintiff's motion.While unconditional tender of the judgment amount stops the running of postjudgmentinterest (see Wireman v Reith, 220 AD2d 582, 583 [1995]; Meiselman vAllstate Ins. Co., 197 AD2d 561 [1993]), contrary to the defendant's contention, therecord demonstrates that a tender made by the defendant in March of 2013 was notunconditional (see Cardella v Giancola, 297 AD2d 618, 619 [2002]; Cohen vTranscontinental Ins. Co., 262 AD2d 189, 190-191 [1999]).
The parties' remaining contentions are either without merit or not properly before thisCourt. Dillon, J.P., Dickerson, Miller and Duffy, JJ., concur.