Love v. State

164 A.D.2d 155, 561 N.Y.S.2d 945, 1990 N.Y. App. Div. LEXIS 14376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1990
• Docket: Claim No. 72821
• Status: Published

Opinions

OPINION OF THE COURT

Lawton, J.

On this appeal the State contends that the Court of Claims’ award of interest from the date of the liability determination in this bifurcated trial was error because the State did not cause any delay between the liability determination and the award of damages. A review of the record confirms the contention that the State did not cause delay. Indeed, the principal reason for the interval between the court’s finding of liability and the assessment of damages was the court’s delay after trial in making its award of damages. The State’s lack of blame for the delay, however, does not relieve it of its obligation to pay interest from the date of the liability determination.

The question of the computation of interest in bifurcated trials is not a new one. A review of the cases dealing with this issue, however, fails to establish a clearly enunciated rule. The Court of Appeals in Gunnarson v State of New York (70 NY2d 923) set forth the general rule that interest should be calculated from the date of the adjudication of liability. In so deciding, however, the court recited facts which showed that defendant in that case was the cause of the delay between adjudications. Additionally, the court cited with approval the case of Trimboli v Scarpaci Funeral Home (37 AD2d 386, 389, affd on opn below 30 NY2d 687), wherein it stated: "Hence, the delay in the rendition of damages may properly be charged against the party causing it, in considering the allowance of interest”. That language has led this and other courts to the conclusion that the award of interest is to be determined in accordance with the relative degrees of fault for delay. In Viscomi v Kresge Co. (149 AD2d 979, lv denied 76 NY2d 708), an analogous case where a retrial was ordered on the issue of damages only, this court, in declining to award plaintiffs interest from the liability determination, stated (at 980): "Although the Court of Appeals has held that plaintiffs in bifurcated trials are entitled to interest on damages from the date of the verdict on liability when defendants have taken concededly lawful appeals, defendants’ fault for the delays appears to have been a prerequisite to the recovery of interest by plaintiffs (see, Gunnarson v State of New York, 70 NY2d 923; Trimboli v Scarpaci Funeral Home, 37 AD2d 386, affd on opn below 30 NY2d 687).” (See also, Malkin v Wright, 64 AD2d 569; Monette v Bonsall, 29 AD2d 839; Zegman v State of New York, 99 Misc 2d 473; Lindwall v Talent Cab Corp., 51 Misc 2d 381, affd 27 AD2d 647.)

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While such a test may readily be workable in instances where one of the parties is at fault for the delay, it does not apply to an instance, as in this case, where neither party was at fault. Further, such a rule is difficult to apply in cases involving multiple parties. Fault is a relative term, not always easy to determine or assess. We do not think it wise, as a general rule, to require a court to make factual determinations on the issue of fault for each period of delay prior to an award of damages in order to determine the number of days for which interest should be awarded.

The purpose of interest is to compensate a person who has been temporarily deprived of the use of moneys to which he or she is entitled. In this regard, Justice Fein, in his concurring opinion in Malkin v Wright (64 AD2d 569, 571, supra) correctly notes that, once there has been a liability verdict, plaintiffs loss has been established with only the amount to be fixed. By directing defendant to pay interest from the date of the liability determination, plaintiff is made whole for defendant’s use of the money during that period (see, Malkin v Wright, supra). Once a judicial determination has been made that a party has been wrongfully injured by another, it will, except in rare cases, trigger the commencement of the period for which interest is to be awarded as a matter of law.

Neither Gunnarson (supra) nor Trimboli (supra) requires a contrary result. In Gunnarson the Court of Appeals did not specifically state that interest may be awarded only against a party causing the delay but, rather, reiterated the rule in Trimboli that interest should be calculated from the date of the liability adjudication in bifurcated trials. Additionally, the court in Trimboli (supra, at 389) notes that awarding interest from the date of the liability adjudication is appropriate because it indemnifies the plaintiff for the payment of what was due.

No injustice will result from our determination that assessment of fault will not ordinarily be the determining factor in making an award of interest. A defendant has ample means available to limit the period of time between the determination of liability and the assessment of damages by employing the existing statutory provisions and court rules which govern both trial and appellate procedures (see, e.g., CPLR 3403 [a] [3]; 22 NYCRR 202.42 [e]; Rules of App Div, 4th Dept [22 NYCRR] § 1000.3).

For the above-stated reasons, we affirm the Court of Claims’ award of interest from the date of the determination of liability.

We have reviewed the other issues raised by the parties and find them lacking in merit.

See also, 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5001.07, wherein it is stated that preverdict interest in personal injury actions "may be relaxed to a certain extent where there are separate trials on the issues of liability and damages and there is a substantial delay between the determination of liability and the setting of damages. The availability of interest will usually depend upon deciding which party bears responsibility for the delay”.