Opinion
2001-03742, 2001-05119, 2001-09110
Argued June 17, 2002.
August 5, 2002.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated December 19, 2000, as denied his motion pursuant to CPLR 4404(a) to set aside a jury verdict as against the weight of the evidence, (2), as limited by his brief, from stated portions of a judgment of the same court, dated April 2, 2001, which, upon the jury verdict, inter alia, is in favor of the defendant Keith D. Gordon and against him in the principal sum of $200,000, and failed to award him prejudgment interest on the portion of the judgment which is in his favor, and (3) from so much of an order of the same court, dated May 10, 2001, as denied his motion to resettle the judgment dated April 2, 2001, and the defendants cross appeal, as limited by their brief, from so much of the judgment as, among other things, failed to award the defendant Keith D. Gordon prejudgment interest.
Hurley, Fox, Selig Kelleher, LLP, Stony Point, N.Y. (Peter Klose and Benjamin E. Selig of counsel), for respondents-appellants.
Behrins Behrins, P.C., Staten Island, N.Y. (Bruce G. Behrins and Eric N. Vitaliano of counsel), for appellant-respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the appeals from the orders dated December 19, 2000, and May 10, 2001, are dismissed; and it is further,
ORDERED that the cross appeal by the defendant All Pets Veterinary Hospital, P.C., is dismissed, as that defendant is not aggrieved by the portion of the judgment cross appealed from (see CPLR 5511); and it is further,
ORDERED that the judgment is modified, on the law and on the facts, by (1) deleting the provision thereof awarding the defendant Keith D. Gordon the sum of $200,000 and substituting therefor a provision awarding him $142,607.41, (2) adding thereto a provision awarding the plaintiff prejudgment interest from March 16, 1998, and (3) adding thereto a provision awarding the defendant Keith D. Gordon prejudgment interest from July 1, 1998; as so modified, the judgment is affirmed insofar as appealed and cross appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, to recompute the interest due the plaintiff and the defendant Keith D. Gordon.
The appeal from the intermediate order dated December 19, 2000, 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The appeal from the order dated May 10, 2001, is dismissed because no appeal lies from an order denying a motion for resettlement of the decretal paragraphs of a judgment (see Hoeflschweiger v. Decovnick, 287 A.D.2d 694; Celauro v. Celauro, 286 A.D.2d 471).
Pursuant to CPLR 4404(a), a "court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence." A jury verdict should not be set aside and a new trial ordered unless the jury could not have reached the verdict on any fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 134). For a directed verdict, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499). We decline to disturb the jury verdict as to the claim and counterclaim for breach of fiduciary duty. However, the award of damages to the defendant Keith D. Gordon, as reduced by the Supreme Court, must be further reduced to the sum of $142,607.41, because the evidence does not support an award in excess of that amount.
It is well settled that the purpose of awarding interest is to make an aggrieved party whole (see Spodek v. Park Prop. Dev. Assocs., 96 N.Y.2d 577, 581). Since the plaintiff was entitled to the value of his interest in the defendant All Pets Veterinary Hospital, P.C., from March 16, 1998, interest on that value shall accrue as of that date (see CPLR 5001[a]; Bruce Supply Corp. v. D M Plumbing Heating Corp., 291 A.D.2d 525). Moreover, while it is unclear from the record the dates on which the defendant Gordon incurred damages for the plaintiff's breach of fiduciary duty, it is undisputed that all damages were incurred by July 1, 1998. Thus, July 1, 1998, is a "reasonable intermediate date" from which the interest on those damages shall accrue (see CPLR 5001[b]; Mandelberg v. Mandelberg, 275 A.D.2d 397).
The remaining contentions of the plaintiff and the defendant Gordon are without merit.
FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.