Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulette-Ambulance Inc.

286 A.D.2d 496, 729 N.Y.S.2d 639, 2001 N.Y. App. Div. LEXIS 8273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 2001
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Hunter Ambulette-Ambulance Inc. appeals from so much of a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered June 8, 2000, as, upon an order of the same court, dated May 16, 2000, granting the plaintiffs motion for an award of prejudgment interest to be computed from January 1, 1992, awarded prejudgment interest in the amount of $26,573.75.

Ordered that the judgment is modified by deleting from the first decretal paragraph thereof the provision awarding the plaintiff interest from January 1, 1992, in the sum of $26,573.75, and substituting therefor a provision awarding the plaintiff interest from September 9, 1993; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the order dated May 16, 2000, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a calculation of the interest in accordance herewith and the entry of an appropriate amended judgment.

The Supreme Court properly determined that the plaintiff established its entitlement to statutory prejudgment interest (see, CPLR 5001 [a], [b]). However, under the circumstances of this case, statutory interest should be computed from September 9, 1993, the date upon which the plaintiffs damages were incurred (cf., Kaiser v Fishman, 187 AD2d 623, 627).

Accordingly, the judgment is modified and the matter is remitted to the Supreme Court, Nassau County, for a calculation of the amount of interest to be awarded and the entry of an appropriate amended judgment. Krausman, J. P., McGinity, Schmidt and Adams, JJ., concur.