Posillico Construction Co. v. State

Appellate Division of the Supreme Court of New York

Posillico Construction Co. v. State

34 A.D.2d 1058, 313 N.Y.S.2d 316, 1970 N.Y. App. Div. LEXIS 4225

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

DecidedJune 30, 1970

DocketClaim No. 43076

StatusPublished

This text of 34 A.D.2d 1058 (Posillico Construction Co. v. State) 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.

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Posillico Construction Co. v. State, 34 A.D.2d 1058, 313 N.Y.S.2d 316, 1970 N.Y. App. Div. LEXIS 4225 (N.Y. Ct. App. 1970).

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Opinion

Reynolds, J.

Appeal from a judgment of the Court of Claims awarding claimant upon remittitur interest on the final payment from January 10, 1962 to April 24, 1964. When this ease was previously on appeal here we held that the question of interest on a severed claim hinged on the validity of additional claims asserted by claimant, and that since claimant had prevailed on these claims at a subsequent trial, it was entitled to interest on the amount of the severed judgment (31 A D 2d 693, affd. 27 N Y 2d 523). Accordingly, we remitted that portion of the claim to the Court of Claims to determine, upon the existing record or upon additional proof, the “time reasonably necessary to complete the processing of the final payment and thereupon to compute the amount of interest to which claimant is entitled ”. The Court of Claims awarded interest on the judgment from January 10, 1962, the undisputed date of the. preparation of the final estimate by the district engineer. The State appeals from that judgment, contending that because claimant delayed unreasonably in rejecting the tender of final payment made on March 13, 1962, the date from which interest should be calculated should be November 19, 1963, when the rejection of the tendered payment allegedly occurred, or that at most interest should be awarded only from the date of tender of final payment. We find no merit in either contention. The choice of the date of the preparation of the final estimate was clearly appropriate here (Yonkers Contr. Co. v. New York State Thrwway Auth., 25 N Y 2d 1, 6). A. E. Ottaviano, Inc. v. State of New York (32 A D 2d 87) is not apposite here where the [1059]*1059decision with reference to interest on the severed judgment was reserved at the time judgment was granted (Terry Contr. v. State of New York, 23 N Y 2d 167; Johnson, Brake & Piper v. State of New York, 29 A D 2d 793). Judgment affirmed, with costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Reynolds, J.

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Reynolds, J.

Appeal from a judgment of the Court of Claims awarding claimant upon remittitur interest on the final payment from January 10, 1962 to April 24, 1964. When this ease was previously on appeal here we held that the question of interest on a severed claim hinged on the validity of additional claims asserted by claimant, and that since claimant had prevailed on these claims at a subsequent trial, it was entitled to interest on the amount of the severed judgment (31 A D 2d 693, affd. 27 N Y 2d 523). Accordingly, we remitted that portion of the claim to the Court of Claims to determine, upon the existing record or upon additional proof, the “time reasonably necessary to complete the processing of the final payment and thereupon to compute the amount of interest to which claimant is entitled ”. The Court of Claims awarded interest on the judgment from January 10, 1962, the undisputed date of the. preparation of the final estimate by the district engineer. The State appeals from that judgment, contending that because claimant delayed unreasonably in rejecting the tender of final payment made on March 13, 1962, the date from which interest should be calculated should be November 19, 1963, when the rejection of the tendered payment allegedly occurred, or that at most interest should be awarded only from the date of tender of final payment. We find no merit in either contention. The choice of the date of the preparation of the final estimate was clearly appropriate here (Yonkers Contr. Co. v. New York State Thrwway Auth., 25 N Y 2d 1, 6). A. E. Ottaviano, Inc. v. State of New York (32 A D 2d 87) is not apposite here where the [1059]*1059decision with reference to interest on the severed judgment was reserved at the time judgment was granted (Terry Contr. v. State of New York, 23 N Y 2d 167; Johnson, Brake & Piper v. State of New York, 29 A D 2d 793). Judgment affirmed, with costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Reynolds, J.

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34 A.D.2d 1058, 313 N.Y.S.2d 316, 1970 N.Y. App. Div. LEXIS 4225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posillico-construction-co-v-state-nyappdiv-1970.