Fori v. Fori , 43 N.Y.S.3d 554 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 1, 2016 522274
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THOMAS J. FORI,
Appellant,
v MEMORANDUM AND ORDER
LYNNE V. FORI,
Respondent.
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Calendar Date: October 12, 2016
Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.
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David R. Sheridan, Delmar, for appellant.
Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.
Rutkey of counsel), for respondent.
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Peters, P.J.
Appeal from a judgment of the Supreme Court (Elliot III,
J.), entered June 4, 2015 in Greene County, which partially
denied plaintiff's motion to enforce the terms of a stipulation
of settlement.
Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) were married in 1965 and this divorce
action was commenced in 2009. In September 2013, the parties
entered into a separation agreement which, among other things,
required the wife to pay the husband a distributive award in the
amount of $216,393.36 by October 3, 2013. When she failed to do
so, the husband moved to enforce the separation agreement by
directing the wife to tender the distributive award together with
statutory interest from the date due. Supreme Court, among other
things, ordered the wife to pay the distributive award plus all
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interest actually earned on that sum, but declined to award
prejudgment interest pursuant to CPLR 5001. The husband appeals,
arguing solely that Supreme Court erred in declining to impose
prejudgment interest at the statutory rate.
We affirm. "There is no automatic entitlement to
prejudgment interest, under CPLR 5001, in matrimonial litigation"
(Rubin v Rubin, 1 AD3d 220, 221 [2003], lv denied 2 NY3d 706
[2004]; see Spathis v Spathis, 137 AD3d 654, 654 [2016];
Weinstein-Korn-Miller, NY Civ Prac ¶ 5001.01). Rather, the
decision to award prejudgment interest in a matrimonial action,
as well as the rate and date from which it shall be computed, are
matters within the sound discretion of the trial court (see
Pappas v Pappas, 140 AD3d 838, 840 [2016]; Wyser-Pratte v
Wyser-Pratte, 68 AD3d 624, 626 [2009]; Lipsky v Lipsky, 276 AD2d
753, 754 [2000]; Selinger v Selinger, 250 AD2d 752, 753 [1998],
lv dismissed and denied 92 NY2d 891 [1998]). Here, the record
reflects that, following the execution of the separation
agreement, issues arose regarding the accuracy of certain deeds
and transfer documents prepared by the husband relative to the
parcels of real property that were to be conveyed pursuant to the
agreement. Such issues had not been resolved at the time of the
husband's motion to enforce the agreement, the wife claiming that
certain inaccuracies still remained within the relevant
documents. Although the wife's obligation to tender the
distributive award by the date prescribed in the separation
agreement was not contingent upon the execution of the deeds
transferring the real property, the wife explained that she had
been advised by her attorney to withhold payment of the
distributive award – which she had placed in a separate interest-
bearing bank account – until the deeds were finalized and signed
so as to ensure a contemporaneous exchange (cf. Parnes v Parnes,
41 AD3d 934, 937 [2007]; Allen v Allen, 83 AD2d 708, 709 [1981]).
Under these circumstances, we cannot conclude that Supreme Court
improvidently exercised its discretion in choosing to award the
husband all interest actually earned on the distributive award
rather than prejudgment interest pursuant to CPLR 5001.
McCarthy, Lynch, Rose and Mulvey, JJ., concur.
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ORDERED that judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court