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Eighteen Holding Corp. v. Drizin

Appellate Division of the Supreme Court of New York, First Department
Jan 25, 2000
268 A.D.2d 371 (N.Y. App. Div. 2000)

Summary

affirming an award of prejudgment interest pursuant to CPLR 5001 on plaintiff's claims seeking damages for unjust enrichment and conversion

Summary of this case from Green Tree Servicing Llc. v. Christodoulakis

Opinion

January 25, 2000

Judgment, Supreme Court, New York County (Barry Cozier, J.), entered May 4, 1999, which, upon a prior order of the same court and Justice, granting plaintiff's motion for summary judgment with respect to its causes for money had and received, unjust enrichment and conversion, awarded plaintiff the sum of $264,473.92, plus costs and disbursements and interest at the statutory rate of nine percent, unanimously affirmed, with costs.

Ezio Scaldaferri, for plaintiff-respondent.

Jeremy Heisler, for defendants-appellants.

SULLIVAN, J.P., TOM, MAZZARELLI, WALLACH, RUBIN, JJ.


The parties formed a partnership for the purpose of acquiring certain mortgages and, by the terms of their partnership agreement, each partner was to receive a share of the proceeds from the disposition of the mortgages proportionate to the partner's interest in the partnership. Defendants, in opposing plaintiff's motion for summary judgment, failed to adduce proof in evidentiary form sufficient to raise an issue of fact with respect to their contention, plainly at odds with the terms of the partnership agreement, that plaintiff, a partner, was entitled only to reimbursement of its contribution to the purchase of the mortgages. Defendants' submissions amounted to no more than unsubstantiated allegations and, as such, failed to warrant denial of plaintiff's summary judgment motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557).

The award of pre-judgment interest pursuant to CPLR 5001 at the statutory rate of nine percent was proper. This was an action at law, not one in which an accounting of the partnership was required; the proceeds of a discrete transaction were held in one account and a specified share of the funds was owed plaintiff (see, Non-Linear Trading Co., Inc. v. Braddis Assocs., Inc., 243 A.D.2d 107, 115, quoting Kriegsman v. Kraus, Ostreicher Co., 126 A.D.2d 489, 490). Moreover, even if plaintiff's action had been equitable, the IAS court's award of prejudgment interest would nonetheless have been proper in light of the circumstance that defendants wrongly withheld plaintiff's money (see Aurnou v. Greenspan, 161 A.D.2d 438, 439-440, amended on other grounds,164 A.D.2d 794).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Eighteen Holding Corp. v. Drizin

Appellate Division of the Supreme Court of New York, First Department
Jan 25, 2000
268 A.D.2d 371 (N.Y. App. Div. 2000)

affirming an award of prejudgment interest pursuant to CPLR 5001 on plaintiff's claims seeking damages for unjust enrichment and conversion

Summary of this case from Green Tree Servicing Llc. v. Christodoulakis

awarding prejudgment interest at statutory rate for conversion

Summary of this case from SINGAPORE RECYCLE CENTRE PTE LTD. v. KAD INT'L MKTG

awarding prejudgment interest on wrongfully withheld money

Summary of this case from Phansalkar v. Andersen Weinroth Co.
Case details for

Eighteen Holding Corp. v. Drizin

Case Details

Full title:EIGHTEEN HOLDING CORP., Plaintiff-Respondent, v. SHOLOM DRIZIN, et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 25, 2000

Citations

268 A.D.2d 371 (N.Y. App. Div. 2000)
701 N.Y.S.2d 427

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