Mizuno v. Fischoff & Associates

• Decision Date: 08 March 2011
• Citation: 82 A.D.3d 849,918 N.Y.S.2d 363
• Parties: Nori MIZUNO, respondent-appellant, v. FISCHOFF & ASSOCIATES, ET AL., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 363
82 A.D.3d 849

Nori MIZUNO, respondent-appellant,
v.
FISCHOFF & ASSOCIATES, ET AL., appellants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 8, 2011.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan of counsel), for appellants-respondents.

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, as limited 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, determined that the plaintiff is entitled to 100% of the lost equity in the subject property and is in favor of the plaintiff and against them in the principal sum of $318,227.53, and the plaintiff cross-appeals from 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 matter is remitted to the Supreme Court, Suffolk County, for a new calculation and award of prejudgment interest in accordance herewith, and for the entry of an appropriate amended judgment; 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, the plaintiff's house was sold at a foreclosure sale on April 4, 2002. The plaintiff and his wife held title to the subject property as tenants by the entirety and were, thus, each seized of the whole property ( see Kahn v. Kahn, 43 N.Y.2d 203, 206-207, 401 N.Y.S.2d 47, 371 N.E.2d 809; Steltz v. Shreck, 128 N.Y. 263, 266, 28 N.E. 510; Paterno v. CYC, LLC, 46 A.D.3d 788, 789, 850 N.Y.S.2d 131). Since the plaintiff owned the entire property, the Supreme Court properly held that he was entitled to recover 100% of the lost equity in the property.

We agree with the plaintiff's contention that May 1, 2003, is not a "reasonable intermediate date" from which to calculate prejudgment interest (CPLR 5001[b] ). Instead, we find that April 4, 2002, is a "single reasonable intermediate date" (CPLR...