Sear-Brown Group, Inc. v. Jay Builders, Inc.

272 A.D.2d 978, 707 N.Y.S.2d 580, 2000 N.Y. App. Div. LEXIS 5346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Docket: Appeal No. 2
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied plaintiffs motion for a directed verdict (see, Cohen v Hallmark Cards, 45 NY2d 493, 499) and defendants’ motion to set aside the verdict as against the weight of the evidence (see, Lolik v Big V Supermarkets, 86 NY2d 744, 746). We conclude, however, that the court erred in determining that prejudgment interest should accrue from August 1, 1987. The record establishes that plaintiff’s initial offsite mass grading plan was dated July 19, 1987. That plan underwent several revisions, the last of which occurred in February 1989. Based on the revised plan, the grading of phase 3 of the project of defendant Jay Builders, Inc. (Jay Builders) commenced in February or March 1989. Because the damages of Jay Builders arose from the implementation of that final revised plan, i.e, it sustained additional earth moving costs and the value of the property was reduced, “the earliest ascertainable date” (CPLR 5001 [b]) of defendants’ counterclaim was February 1, 1989. Consequently, we modify the judgment by changing the prejudgment interest accrual date from August 1, 1987 to February 1, 1989.

We have reviewed the remaining contentions of the parties and conclude that they are without merit. (Appeals from Judgment of Supreme Court, Monroe County, Calvaruso, J.— Contract.) Present — Green, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.