Opinion
June 10, 1998
Appeal from Judgment of Supreme Court, Genesee County, Mahoney, J. — Summary Judgment.
Present — Denman, P. J., Lawton, Wisner, Balio and Boehm, JJ.
Judgment unanimously reversed on the law without costs and motion denied. Memorandum: In litigation arising from the construction of a KM art store in Batavia, plaintiff, The Radec Corporation (Radec), who was then a defendant, asserted a cross claim against the general contractor, defendant Dominick P. Massa Sons, Inc. (Massa), for the unpaid balance due under its subcontract. Supreme Court erred in granting Radec's motion for summary judgment seeking, inter alia, prejudgment interest (see, CPLR 5001) calculated from January 1, 1995 on partial payments made by Massa in April and May 1995 and January 1996. Prejudgment interest is computed from the date on which a subcontractor's work is completed (see, Brent v. Keesler, 32 A.D.2d 804, 805; Elliott v. Gian, 19 A.D.2d 196, 198-199). On this record, it cannot be determined as a matter of law when Radec, completed its performance under the subcontract (see, Koko Contr. v. State of New York, 215 A.D.2d 898, 900; Mid-State Precast Sys. v. Corbetta Constr. Co., 202 A.D.2d 702, 707, lv dismissed 84 N.Y.2d 923, 86 N.Y.2d 855).
We reject Massa's contention that, pursuant to the "pay-when-paid" clause of the subcontract, the payments were not late. Because the "pay-when-paid" clause transfers the risk of the owner's default from Massa, the general contractor, to Radec, a subcontractor, that clause "violates New York public policy as set forth in the Lien Law" (West-Fair Elec. Contrs. v. Aetna Cas. Sur. Co., 87 N.Y.2d 148, 153). The court properly applied West-Fair to this case, which was pending when West-Fair was decided (see, Gager v. White, 53 N.Y.2d 475, 483). In any event, "[a] judicial decision construing the words of a statute * * * does not constitute the creation of a new legal principle" entitled to prospective application only (Gurnee v. Aetna Life Cas. Co., 55 N.Y.2d 184, 192, rearg denied 56 N.Y.2d 567, cert denied 459 U.S. 837; see, People v. Favor, 82 N.Y.2d 254, 262-263, rearg denied 83 N.Y.2d 801; Matter of Americorp Sec. v. Sager, 239 A.D.2d 115, lv denied 90 N.Y.2d 808).