Upon the following papers numbered 1-27 read on this motion to vacate and cross-motion for contempt ; Order to Show Cause and supporting papers 8-11 ; Notice of Cross Motion and supporting papers 12-26 ; Answering Affidavits and supporting papers27 ; Replying Affidavits and supporting papers; it is,

ORDERED that this motion by the defendant Ted Doukas for an order staying

enforcement of the judgment in this action, which was entered on May 17, 2012; vacating such judgment; vacating the jury's verdict; and granting leave to renew and reargue his prior motion [*2]for judgment notwithstanding the verdict, which was denied by a decision and order of this court dated May 17, 2012, is denied; and it is further

ORDERED that the branch of the cross motion by the plaintiff which is to punish the defendant Ted Doukas for contempt is denied; and it is further

ORDERED that the branch of the cross motion by the plaintiff which is to fix the dates from which interest shall be computed is granted; and it is further

ORDERED that interest shall be computed from August 29, 2006 on $650,000 and from January 5, 2006 on the remaining $125,000.

This is the third attempt by the defendant Ted Doukas to establish that he is not personally liable to the plaintiff for the real-estate commission that is the subject of this action because he did not own the property in question in his personal capacity. That argument was rejected by the jury and then by the court, which denied Doukas's prior motion for judgment notwithstanding the verdict. In support of his current motion, Doukas produces affidavits by three witnesses and himself contradicting the testimony of the plaintiff's principal and chief witness, Roger Delisle, who testified at trial that he did not know the properties in question were owned by the defendant M.D. Stat LLC.^[FN1] Doukas contends that these affidavits prove Delisle's testimony was perjured.

Preliminarily, the court notes that Doukas's motion is untimely insofar as it seeks reargument of this court's prior decision and order. A motion for leave to reargue shall be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry (CPLR 2221[d][3]). The plaintiff served the prior order with notice of entry on or about June 1, 2012, and Doukas made his motion approximately six months later on December 21, 2012.

A motion for renewal must be based on evidence that was not previously known to the moving party and, therefore not made known to the court (Matter of B. Children, 23 Misc 3d 1119[A] at *11 [and cases cited therein]). Similarly, a motion to vacate on the basis of newly discovered evidence must be based on previously existing evidence that could not have been discovered in time to move for a new trial and, if introduced at trial, would probably have produced a different result (Id.). To qualify as newly discovered evidence, the evidence must have been in existence at the time of the original proceeding, but undiscoverable with due diligence at the time of the original order or judgment (Id.).

The court finds that Doukas has failed to satisfy these requirements. Doukas's own affidavit is based entirely on hearsay and is, therefore, without evidentiary value. The other three witnesses are not newly discovered and could have been called by Doukas to testify at trial. [*3]Robert Curcio was deposed by the plaintiff and identified as a potential witness on the defendants' pre-trial witness list. His affidavit describes a meeting at which Doukas was present and contradicts his deposition testimony. His affidavit also contains hearsay. John Stravato has been Doukas's attorney since 1991 and was involved in the sale of the property in question. Peter Casserly, the Deputy Mayor for the Village of Amityville, where the property is located, was personally familiar with all stages of the property's development. He, therefore, would have been known to Doukas.

Even assuming that the plaintiff knew, as Doukas contends, that he did not own the property in his individual capacity, the evidence proffered by Doukas would not have produced a different result. It has long been held that a principal who employs a broker is liable for commissions when the broker performs the contract by procuring a purchaser, even though the principal does not own the property involved and cannot sell it (see, Shalom & Zuckerbrot Realty Corp. v Citibank, N.A., 205 AD2d 336, 338; Kalmon Dolgin Affiliates v Estate of Nutman, 172 AD2d 917, 918). Thus, one can obligate onself for the payment of commissions in making a sale of property that one does not own (11 NY Jur 2d , Brokers § 184 [and cases cited therein]), and the fact that title to the property is held by a limited liability corporation does not automatically relieve the defendant of his contractual obligation to pay the broker's fee (Prudential Douglas Elliman v Smyles, 2007 NYSlip Op 30780[U] [Sup Ct, Suffolk County 2007]). Accordingly, the branches of Doukas's motion which are to vacate the judgment, to vacate the verdict, and to renew and reargue his prior motion for judgment notwithstanding the verdict are denied.

Turning to the plaintiff's cross motion, the court finds that the branch thereof which seeks to punish Doukas for contempt is procedurally defective. Judiciary Law § 756 requires that an application to punish for contempt be served no less than 10 and no more than 30 days before it is noticed to be heard, that the application contain on its face a notice that the purpose of the hearing is to punish the accused for contempt of court and that such punishment may consist of a fine or imprisonment, or both. Judiciary Law § 761 requires that the application be served on the accused, unless service on his attorney is ordered by the court or judge. The plaintiff's application to punish Doukas for contempt was made on January 25, 2013, and noticed to be heard on January 31, 2013, only six days later. It did not contain on its face the notice required by Judiciary Law § 756. Moreover, it was served on Doukas's attorney. Since the application was made by notice of cross motion and not by order to show cause, service on Doukas's attorney was not ordered by the court or judge.

The plaintiff seeks to hold Doukas in contempt for failing to respond to an information subpoena. CPLR 5224(a)(3) provides that service of an information subpoena, accompanied by a copy and original of written questions and a prepaid addressed return envelope, may be made by registered or certified mail, return receipt requested. Alternatively, an information subpoena may be served pursuant to CPLR 2303 in the same manner as a summons (see, Jack Mailman & Leonard Flug DDS, P.C. v Belvecchio, 195 Misc 2d 275, 276). Refusal or neglect to obey an information subpoena is punishable as a contempt of court under CPLR 5251 and Judiciary Law [*4]§ 753(A)(5) (Id.) Actual receipt of the subpoena is a necessary predicate for a contempt charge. Thus, the information subpoena must be served in compliance with either CPLR 5224 or 2303 and must be received (see, Metropolitan Life Ins. Co. v Young, 157 Misc 2d 452, 453-454). The record reflects that the plaintiff served the information subpoena on Dukas by first class mail, which is not in accordance with either CPLR 5224 or 2303. Moreover, the plaintiff has failed to establish that it was actually received by Doukas.

The plaintiff also seeks to hold Doukas in contempt for purportedly transferring assets to his wife after the judgment against him was entered and after he was served with the information subpoena. While the plaintiff may have a claim for fraudulent conveyance (see, Debtor and Creditor Law art 10), the record does not reflect that Doukas disobeyed a lawful order of the court, clearly expressing an unequivocal mandate (see, Matter of McCormick v Axelrod, 59 NY2d 574, 583). As previously discussed, the information subpoena was not properly served on Doukas, and an ordinary money judgment is not enforceable by contempt merely upon a showing that the judgment has not been paid (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C5104:1). CPLR 5104 makes the contempt penalty available as an enforcement device for judgments not enforceable by execution (Id.). The judgment in this case is an ordinary money judgment, enforceable by execution. Accordingly, the branch of the cross motion which is to find Doukas in contempt of court is denied.

Finally, the plaintiff cross moves for an order fixing the dates from which interest shall be computed. This is an action for breach of an oral brokerage agreement. Under New York law, prejudgment interest is recoverable as a matter of right in an action for breach of contract (see, CPLR 5001[a]; Lee v Joseph E. Seagram & Sons, Inc., 592 F2d 39, 40 [2nd Cir]). CPLR 5001(c) provides that, if the jury is discharged without specifying the date from which interest is to be computed, the court shall fix the date upon motion (Id.). It is undisputed that the issue of prejudgment interest was not submitted to the jury, but that the judgment entered on May 17, 2012, contains dates from which prejudgment interest is computed. Those dates are August 29, 2006, on $650,000 and January 5, 2006, on the remaining $125,000. The plaintiff asks the court to use the same dates. Doukas contends that the plaintiff waived its right to prejudgment interest by not bringing it to the court's attention sooner.

Contrary to Doukas's contentions, the plaintiff did not waive its right to prejudgment interest by failing to ask the jury to fix the date from which interest is to be computed. Since prejudgment interest under CPLR 5001 is a matter of right, the plaintiff is entitled to have interest added to the verdict and included in the judgment even though it was not demanded in the complaint or proven at trial (see, Mount Sinai Hosp. v Borg-Warner Corp., 527 F Supp 922, 924; Quinn v Sigretto, 229 App Div 727). When, as here, the matter is not submitted to the jury, the plaintiff does not waive its right to have a date fixed and interest computed, but only its right to have the jury fix the date (see, Dobbs v Vornado, 576 F Supp 1072, 1081 [EDNY]). It then becomes the duty of the court (see, CPLR 5001[c]); see also, Mathis v Matthews, 39 NYS 2d 242, 243). [*5]

The court finds that Lee v Joseph E. Seagram & Sons, Inc. (supra), upon which Doukas relies is misplaced. In that case, the plaintiffs raised the issue of prejudgment interest for the first time some two years after the judgment had been entered and paid in full. The plaintiffs moved to amend and correct the judgment by adding prejudgment interest thereto pursuant to Federal Rule of Civil Procedure 60 (a), which governs clerical mistakes and errors in judgments. The Second Circuit found that the plaintiffs were unquestionably entitled to prejudgment interest under CPLR 5001, but that no clerical error or mistake had occurred. The Second Circuit also found that the plaintiffs' motion was time-barred under Federal Rule of Civil Procedure 59 (e), which required that a motion to alter or amend a judgment be served no later than 10 days ^[FN2] after entry of the judgment, and Federal Rule of Civil Procedure 60 (b) (1). Rule 60 (b) (1) provides that a party may be relieved from a judgement for mistake, inadvertence, surprise, or excusable neglect, but the motion must be made no more than one year after entry of the judgment (see, Fed Rule Civ Pro 60 [c] [1]).^[FN3]

As previously discussed, the prevailing party cannot waive its right to prejudgment interest (see, Stanford Square, LLC v Nomura Asset Capital Corp., 232 F Supp 2d 289, 291). Lee v Joseph E. Seagram & Sons, Inc. (supra), merely stands for the proposition that a party's ability to amend a judgment to include prejudgment interest lapses once a motion to alter or amend the judgment pursuant to Federal Rules of Civil Procedure 59 (e) is no longer timely (Id.). Here, the judgment included prejudgment interest. Thus, there is no need to alter or amend it. What the plaintiff seeks is to have the court ratify the dates from which interest was computed in the judgment since those dates were not determined by the court or jury, as required by CPLR 5001 (c). CPLR 5001 (c) contains no limitations of time within which a motion to fix the date must be made. Moreover, it mandates that the court fix the date when, as here, the jury is discharged without specifying the date.

In view of the foregoing, the court finds that the plaintiff did not waive its right to prejudgment interest. Other than the waiver argument, Doukas raises no objection to the dates provided by the plaintiff for the calculation of interest. Accordingly, the branch of the cross motion which is to fix the dates from which interest shall be computed is granted, and the court finds that the plaintiff is entitled to interest from August 29, 2006, on $650,000 and from January 5, 2006, on the remaining $125,000. The branch of Doukas's motion which is to stay enforcement of the judgment is denied. [*6]

Dated:June 18, 2013

J.S.C.