Carvel v. Davis

Appellate Division of the Supreme Court of New York

Carvel v. Davis

255 A.D.2d 315, 679 N.Y.S.2d 644, 1998 N.Y. App. Div. LEXIS 11566

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 2, 1998

StatusPublished

Cited by2 cases

This text of 255 A.D.2d 315 (Carvel v. Davis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carvel v. Davis, 255 A.D.2d 315, 679 N.Y.S.2d 644, 1998 N.Y. App. Div. LEXIS 11566 (N.Y. Ct. App. 1998).

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Opinion

—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 is[316]*316sue 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). Miller, J. P., Thompson, Pizzuto, Mc-Ginity and Luciano, JJ., concur.

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—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 is[316]*316sue 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). Miller, J. P., Thompson, Pizzuto, Mc-Ginity and Luciano, JJ., concur.

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Bluebook (online)

255 A.D.2d 315, 679 N.Y.S.2d 644, 1998 N.Y. App. Div. LEXIS 11566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carvel-v-davis-nyappdiv-1998.

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