Delulio v. 320-57 Corp.

• Decision Date: 28 February 1984
• Parties: Donata A. DELULIO, Plaintiff-Appellant, v. 320-57 CORPORATION, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 379

472 N.Y.S.2d 379

99 A.D.2d 253

Donata A. DELULIO, Plaintiff-Appellant, v. 320-57 CORPORATION, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 28, 1984.

Jon M. Kaufman, of counsel (Peter Levine, New York City, with him on the brief Jon M. Kaufman, P.C., New York City, attorney), for plaintiff-appellant.

Leon Brickman, Brooklyn, for defendant-respondent.

Before SULLIVAN, J.P., and ASCH, BLOOM, FEIN and MILONAS, JJ.

FEIN, Justice.

Plaintiff suffered damage to her cooperative apartment shortly after she took possession in April 1976. Her repeated demands of defendant to make necessary repairs since then have been met with intransigence and harassment. On several occasions she withheld her maintenance payments, which only provoked defendant to commence non-payment eviction action. Previous such actions were settled upon plaintiff's payment of the maintenance charges. The latest eviction proceeding was consolidated with plaintiff's action for damages for breach of warranty of habitability, breach of the lease and negligence. A non-jury trial resulted in a compensatory damage award of $7,500 plus a 5% abatement of monthly maintenance charges for the period August 1976 through December 1982, and a punitive damage award of $5,000 to be applied toward repair of the roof above plaintiff's apartment. As directed by the court no provision was made in the judgment for pre-judgment interest.

CPLR 5001(a) provides that interest "shall" be recovered on monetary damages awarded for breach of contract or any act or omission affecting possession or enjoyment of property. This is now a statutory mandate (Kooperman v. Picoult, 41 A.D.2d 980, 981, 343 N.Y.S.2d 732, affd. 34 N.Y.2d 604, 355 N.Y.S.2d 362, 311 N.E.2d 499), in derogation of common law (cf. Purcell v. Long Island Daily Press Publishing Company, 9 N.Y.2d 255, 259, 213 N.Y.S.2d 425, 173 N.E.2d 865). Thus, absent reasons to the contrary, a prevailing plaintiff is entitled to such interest as of right (Hillsley v. State Bank of Albany, 24 A.D.2d 28, 31, 263 N.Y.S.2d 578). This is regardless of whether the recovery is for breach of contract (Carpenter v. Weichart, 51 A.D.2d 817, 818, 379 N.Y.S.2d 191, lv. to app. den. 39 N.Y.2d 708, 386 N.Y.S.2d 1025, 352 N.E.2d 595) or for negligent injury to property (see State Division of Human Rights v. State of New York, 90 A.D.2d 51, 59, 456 N.Y.S.2d 63; Harmon & Regalia, Inc. v. City of New York, 286 App.Div. 825, 141 N.Y.S.2d 877). The statute further laid to rest any distinction between the right to pre-judgment interest on recovery for negligent or intentional damage to property (Buffalo Oil Terminal v. William B. Kimmins & Sons, Inc., 42 Misc.2d 499, 248 N.Y.S.2d 499, affd. 23 A.D.2d 970, 260 N.Y.S.2d 621; cf. De Long Corporation v. Morrison-Knudsen Company, 14 N.Y.2d 346, 348, 251 N.Y.S.2d 657, 200 N.E.2d 557, affg. 20 A.D.2d 104, 244 N.Y.S.2d 859).

It follows that plaintiff is entitled to interest as of right whether this action and the award of damages be deemed either for defendant's breach of contract, the lease, or for damage to or interference with plaintiff's enjoyment of her property.

However, plaintiff is not entitled to interest on the punitive damage award for any period prior to the date of the trial court's decision (Siegel, Practice Commentary, Book 1B, McKinney's, Cons.L. of N.Y., CPLR § 5001, p. 524). Punitive damages are intended only to impose punishment on a defendant. Interest on such damages prior to verdict or decision is unnecessary to assure full compensation to the injured party. (Book 7B, McKinney's Cons.L. of New York, CPLR § 5001, Legislative Studies and Reports, p. 527).

Interest shall be computed on damages from the date the damages were incurred, and where such damages were incurred at various times, the interest can be computed upon all the damages "from a single reasonable intermediate date" (CPLR 5001[b] ). Where difficulty is encountered in fixing a single reasonable intermediate date, due to conjecture as to the precise date of commencement of the loss, the appropriate date...