Summary
In Caiati of Westchester, Inc. v. Glens Falls Ins. Co., 265 A.D.2d 286, 696 N.Y.S.2d 474 (N.Y.App.Div. 1999), New York's appellate division stated that "the Supreme Court erred in awarding the plaintiff prejudgment interest on the appraisal award.
Summary of this case from Duane Reade v. St. Paul Fire and MarineOpinion
Argued June 18, 1999
October 4, 1999
Appeal from so much of an order of the Supreme Court, Westchester County (Rosato, J.).
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, so much of the order entered June 22, 1998, as granted that branch of the plaintiff's motion which was for interest on the appraisal award as of June 26, 1995, is vacated, and that branch of the plaintiffs motion is denied; and it is further,
ORDERED that the appellant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501[a] [1]).
Based on the unambiguous terms of the "loss payment" provision of the subject insurance policy, the defendant, Glens Falls Insurance Company (hereinafter Glens Falls), was not obligated to pay the disputed amount of the plaintiffs loss until 30 days after the appraisal award was made. Since Glens Falls timely paid the appraisal award, it did not breach the insurance contract ( see, Rubin v. Williams, 245 A.D.2d 181; Catalogue Serv. of Westchester v. Insurance Co. of North Amer., 74 A.D.2d 837; Cohen v. New York Prop. Ins. Underwriting Assn., 65 A.D.2d 71). Moreover, the Supreme Court erred in awarding the plaintiff prejudgment interest on the appraisal award. Interest upon the loss payable under an insurance policy is not recoverable before the payment of the principal is due pursuant to the policy ( see, Capizzi v. Security Mut. Ins. Co., 254 A.D.2d 783; Farmland Market Corp. v. North Riv. Ins. Co., 105 A.D.2d 602, 603, affd 64 N.Y.2d 1114; see also, Buttignol Constr. Co. v. Allstate Ins. Co., 22 A.D.2d 689, affd 17 N.Y.2d 476).
BRACKEN, J.P., O'BRIEN, FRIEDMANN, and GOLDSTEIN, JJ., concur.