Russ & Russ, P.C. v. Schadoff ( 2003 )

—In an action to enforce a confession of judgment, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Falanga, J.), entered October 15, 2001, as denied those branches of his motion which were to vacate the confession of judgment, and, in effect, for summary judgment dismissing the claim for postjudgment interest.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was, in effect, for summary judgment dismissing the claim for postjudgment interest and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied that branch of the defendant’s motion which sought a vacatur of the confession of judgment inasmuch as the defendant could have litigated that claim in a prior action (cf. O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). However, the court erred in denying that branch of the motion which was, in effect, for summary judgment dismissing the claim for postjudgment interest (cf. Fiore v Fiore, 46 NY2d 971 [1979]). Under the circumstances, we find no triable issue of fact on the issue of whether the plaintiff waived its right to post-judgment interest. Krausman, J.P., McGinity, Schmidt and Mastro, JJ., concur.