Buffalo Oil Terminal, Inc. v. William B. Kimmins & Sons, Inc.

• Decision Date: 09 April 1964
• Citation: 42 Misc.2d 499,248 N.Y.S.2d 499
• Parties: BUFFALO OIL TERMINAL, INC., Plaintiff, v. WILLIAM B. KIMMINS & SONS, INC. and Jesse C. Kever, Defendants.
• Court: New York Supreme Court

Page 499

248 N.Y.S.2d 499

42 Misc.2d 499

BUFFALO OIL TERMINAL, INC., Plaintiff, v. WILLIAM B. KIMMINS & SONS, INC. and Jesse C. Kever, Defendants.

Supreme Court, Special Term, Erie County.

April 9, 1964.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, for plaintiff (Grover R. James, Jr., Buffalo, of counsel).

Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, for defendants (Anthony DiFilippo III, Buffalo, of counsel).

MATTHEW J. JASEN, Justice.

This is a motion by plaintiff pursuant to Section 5001 of the CPLR for an order to compute interest on a jury verdict rendered in an action involving a claim for property damage and loss of use and rental of a storage tank owned by the plaintiff.

A verdict was rendered by a jury on February 14th, 1964 where the plaintiff was awarded (1) $25,477.46 for damage to the storage tank and (2) an additional stipulated amount of $2,244.12 for loss of rental and use of said tank. In opposing this motion the defendants contend that Section 5001 of the CPLR does not provide for the computation of interest on a verdict recovered for repairs to damaged property.

Section 5001(a) reads as follows:

'(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.'

It is the opinion of this court that the legislature has in this section, effective September 1st, 1963, eliminated the distinction between intentional property torts and unintentional property torts. See DeLong Corporation v. Morrison-Knudsen Co., 20 A.D.2d 104, 244 N.Y.S.2d 859.

A discussion of Section 5001 of the CPLR in 5 Weinstein-Korn-Miller, Civ.Prac. Sec. 5001.05 in part, reads as follows:

'The property damage provision of CPLR 5001(a) thus codifies those decisions, primarily in the First and Second Departments, that relied upon the dictum in Falmm v. Noble [296 N.Y. 262, 72 N.E.2d 886, 171 A.L.R. 812] and held interest recoverable as of right in cases of negligent injury to property rights. The decisions under prior law that held interest in such cases to be discretionary only are no longer of value. The new provision thus affords a measure of certainty that was absent from prior law.

'CPLR 5001(a) is phrased broadly and is designed to obliterate all distinctions that may turn on the form of the action (except as to actions of an equitable nature, see section 5001.06), the type of property involved, or the nature of the encroachment upon the plaintiff's property interests. Thus, interest is available for the tortious interference with intangible, as well as tangible, property whether or not the property has been physically damaged.' (Emphasis supplied.)

Therefore it appears that interest can properly be awarded in an action to recover for repairs to damaged property such as we have here.

The defendant further urges that in the interest of justice, Section 5001 CPLR, should not be applied to this action which was commenced prior to the enactment of the CPLR.

Although Section 10003...