Summary
awarding prejudgment interest at the statutory rate from the date of claim accrual through the date of judgment where the parties' contract did not specify an interest rate to be applied to overdue payments
Summary of this case from LaBeouf v. SaideOpinion
November 15, 1991
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court properly refused to defer determination of plaintiff's partial summary judgment motion pursuant to CPLR 3212 (f). The affidavit of defendant's attorney, made without knowledge of the facts, was insufficient to establish that disclosure might yield facts that would substantiate a defense to plaintiff's cause of action (see, Weintraub v Phillips, Nizer, Benjamin, Krim Ballon, 172 A.D.2d 254; State of New York v. Wisser Co., 170 A.D.2d 918; Limpar Realty Corp. v Uswiss Realty Holding, 112 A.D.2d 834, 837; see also, Carothers v United Technologies, 177 A.D.2d 995 [decided herewith]).
Supreme Court, however, erred in assessing damages against defendant when it applied an annual interest rate of 18% for the periods between the dates that defendant's obligations accrued and the date of judgment. The contract between the parties did not specify an interest rate to be applied to overdue payments, and plaintiff presented no evidence showing that defendant agreed to pay 18%, which was merely included on plaintiff's invoices to defendant. The amount of prejudgment interest should be calculated at the rate of 9% per annum (see, Metropolitan Sav. Bank v. Tuttle, 290 N.Y. 497, 500, rearg denied 291 N.Y. 634; Marine Midland Bank v. 281 Groton Corp., 142 A.D.2d 941; see also, CPLR 5001 [a], [b]; 5004). Accordingly, the award of damages is modified to award plaintiff the sum of $41,713.47.
We have examined defendant's other contention and find it to be without merit.