Opinion
March 4, 1974
In an action to foreclose a second mortgage on real property, defendant appeals from a judgment of the Supreme Court, Richmond County, dated October 1, 1973, which, after a nonjury trial, fixed his indebtedness at $7,666.69 and granted plaintiffs foreclosure and sale. Judgment modified, on the law, by striking so much thereof as directs that plaintiffs shall be paid interest at the rate of 7 1/2% from November 3, 1970 to the date of the judgment, and substituting therefor a provision awarding the appropriate amount of interest in accordance with the determination made herein. As so modified, judgment affirmed, with costs to respondents, and case remitted to the trial court for the making and entry of an amended judgment in accordance with the views set forth herein. The findings of fact below are affirmed. CPLR 5004, by an amendment in 1972, effective September 1, 1972, provides that interest on monetary amounts in litigation "shall be at the rate of six percentum per annum" (L. 1972, ch. 358, § 1). As respects equitable actions, such as that at bar, this section governs interest from the time of verdict, report or decision to judgment (CPLR 5002) and after entry of judgment (CPLR 5003). Preverdict or predecision interest, both as to rate and date of commencement, lies in the trial court's discretion (CPLR 5001, subd. [a]). Therefore, plaintiffs may properly be awarded interest on $6,307.10 at the rate of 7 1/2% from November 3, 1970 to June 29, 1973, the date of the decision of the trial court. However, from June 29, 1973 to October 1, 1973, the date of the judgment, plaintiffs are limited to interest at the rate of 6% by virtue of CPLR 5004. Gulotta, P.J., Hopkins, Latham and Brennan, JJ., concur.