Carvel v. Davis

• Decision Date: 02 November 1998
• Citation: 255 A.D.2d 315,679 N.Y.S.2d 644
• Parties: 1998 N.Y. Slip Op. 9538 In the Matter of Agnes CARVEL, et al., Petitioner, v. Robert M. DAVIS, et al., Respondents-Respondents, Eric Kaviar, Appellant, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 644

679 N.Y.S.2d 644

1998 N.Y. Slip Op. 9538

In the Matter of Agnes CARVEL, et al., Petitioner, v. Robert M. DAVIS, et al., Respondents-Respondents, Eric Kaviar, Appellant, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1998.

Eric B. Kaviar, Scarsdale, pro se.

Kent, Hazzard, Jaeger, Greer, Wilson & Fay, White Plains (Lawrence F. Fay of counsel), for Respondent-Respondent Robert M. Davis.

Orrick, Herrington & Sutcliffe, L.L.P., New York (David R. Jewell, Steven J. Fink, and Vicki Colca of counsel), for Respondent-Respondent The Thomas and Agnes Carvel Foundation.

MILLER, J.P., THOMPSON, PIZZUTO, McGINITY and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 77, inter alia, to remove Robert Davis and Mildred Arcadipane as trustees, Eric Kaviar appeals from so much of an order of the Surrogate's Court, Westchester County (Emanuelli, S.), dated October 9, 1997, as denied his motion for interest on unpaid trustee commissions for the period of his service as trustee from March 1, 1989, until January 1, 1990.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellant.

The appellant made an application to be paid for unpaid commissions for the period he served as trustee. While the Surrogate's Court awarded the appellant his requested commissions, it denied the appellant interest on the unpaid commissions. Since the proceeding was equitable in nature, the issue of whether to award the appellant interest on the unpaid commissions was within the Surrogate's Court's discretion (see, CPLR 5001[a] ). We find that the Surrogate's Court did not improvidently exercise its discretion in denying the appellant's application for such interest. We reject the appellant's contention that his application was to recover damages for breach of contract, and that he was therefore entitled to interest pursuant to CPLR 5001(a).