Summary
reversing grant of statutory prejudgment interest because of possibility, raised by trial court's jury charge as to interest, that the jury already allowed interest
Summary of this case from Trademark Research Corp. v. Maxwell OnlineOpinion
May 21, 1984
In an action to recover damages for injury to property, defendant appeals from a judgment of the Supreme Court, Nassau County (Widlitz, J.), entered May 12, 1983, which awarded plaintiff the sum of $41,684 together with costs, disbursements and interest from April 19, 1978, the final date of loss as found by the jury. (We deem the notice of appeal from an order dated May 10, 1983 as a notice of appeal from the judgment.) ¶ Judgment modified, on the law and the facts, by deleting the provision which granted plaintiff interest from April 19, 1978 in the sum of $14,829.09, and substituting a provision awarding plaintiff interest from May 12, 1983, the date judgment was entered. As so modified, judgment affirmed, with costs to appellant, and matter remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment. ¶ Although the general rule is that an appeal taken from an order which is followed by an entry of final judgment in the same action must fall and review may only be had upon appeal from the final judgment, we have, in the interest of justice, deemed the notice of appeal from the order to be a notice of appeal from the subsequent judgment in which the order was subsumed (see National Bank v Kory, 63 A.D.2d 579; Chase Manhattan Bank v Roberts Roberts, 63 A.D.2d 566; CPLR 5520, subd [c]). ¶ Turning to the substantive issue, we note that the trial court, at plaintiff's request, albeit somewhat confusingly, did charge the jury as to interest. Thus, inasmuch as there is a possibility that the jury had already allowed interest in the amount of recovery fixed in the verdict, the court erred in granting plaintiff interest from April 19, 1978, the final date of loss as found by the jury (see Mayaquez Drug Co. v Globe Rutgers Fire Ins. Co., 260 N.Y. 356; First Int. Pictures v F.C. Pictures Corp., 262 App. Div. 21; Wilcoxon v Sun Oil Co., 49 Misc.2d 589; Stuckey v Erie R.R. Co., 22 Misc.2d 472). Titone, J.P., Gibbons, Brown and Lawrence, JJ., concur.