Supreme Court, Queens County, October 18, 2018

Kushnick Pallaci PLLC, Bohemia (Vincent T. Pallaci and Jeffrey A. Lhuillier of counsel), for defendants.

Amelia Arcamone-Makinano, plaintiff pro se.

{**62 Misc 3d at 598}The defendants, Britton Properties, Inc., and Tsan Chih Sou, move under CPLR article 26 for an order directing the County Clerk and/or the New York City Department of Finance to release $814,692.40 to the plaintiffs, Amelia Arcamone-Makinano and Bonifacio Aguja Makinano, from the undertaking of $1,199,454.04 deposited by the defendants on April 24, 2017, and to refund the remaining balance thereon, including any interest, to the defendants that has accrued on that undertaking. That motion was made returnable before this court on July 9, 2018. The plaintiff, who appears pro se, then responded to the instant motion by filing a cross motion in which she contends that the modified judgment entered on June 11, 2018, is incorrect as it fails to contain an award for postjudgment interest. (See CPLR 5003.)

The court agrees with the plaintiff and modifies the judgment filed and recorded on June [*2]11, 2018, solely to include postjudgment interest on the total award of $575,000 ($325,000 for compensatory damages and $250,000 for punitive damages), at the statutory rate of 9%, to be calculated from January 29, 2018, the date judgment was entered in this case, to July 9, 2018, the date that the defendants sought to have the funds held by the New York City Department of Finance released. The following constitutes the decision and order of this court.

This case has been pending for over nine years. The Appellate Division, Second Department has twice entered orders in this case. (See Arcamone-Makinano v Britton Prop., Inc., 117 AD3d 889 [2d Dept 2014]; see also Arcamone-Makinano v Britton Prop., Inc., 156 AD3d 669 [2d Dept 2017].) Following the Second Department's decision in December 2017, this court entered judgment pursuant to a decision and order dated May 10, 2018, and entered on May 18, 2018. That judgment was entered against the defendants in an amount totaling $814,692.40. Although that judgment provided for prejudgment interest pursuant to CPLR 5001, it did not include an award of postjudgment interest on the $325,000 compensatory damage award or on the $250,000 punitive damage award set by the Appellate Division in 2017. (See CPLR 5003.)

After reviewing that decision and the motion papers of the parties, as well as the prior decision and order of this court dated May 10, 2018, and entered May 31, 2018, a conference was arranged with both sides in chambers on October 15, 2018. At that conference, the defendants conceded to this court that{**62 Misc 3d at 599} postjudgment interest should have been awarded from January 29, 2018, the date judgment was entered in this case. The defendants contended that the judgment provided for such interest. The court, however, does not agree with that argument. Instead, the court holds that the Clerk never computed an award of postjudgment interest on the combined award of $575,000. The error was not the Clerk's fault. The decision and order of this court dated May 10, 2018, and entered May 31, 2018, apparently caused the confusion.

In any event, at that conference, the defendants requested that postjudgment interest be tolled as of July 9, 2018, when the defendants' motion to have the New York City Department of Finance release $814,692.40 to the plaintiff was returnable before this court. The plaintiff, who has been representing herself, requested that this court issue an order to that effect.

Initially, the court recognizes that, as a general rule, postjudgment interest, as required by CPLR 5003, keeps running until payment is made on the filed judgment. (See Matter of Matra Bldg. Corp. v Kucker, 2 AD3d 732 [2d Dept 2003].) Nevertheless, in a rare case, "[e]quitable considerations may result in an estoppel which can toll the accrual of interest." (Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496, 496 [2d Dept 2005]; see also ERHAL Holding Corp. v Rusin, 252 AD2d 473 [2d Dept 1998].) In this case, the funds were, by court order, placed in the possession of the Department of Finance; that agency requires a court order before such funds can be released. The defendants, not the plaintiff, attempted to release a significant portion of those funds on July 9, 2018.

Finally, the release of the funds has been delayed as a result of the plaintiff's cross motion seeking to correct the judgment and include postjudgment interest. This application could and should have been made much earlier by the plaintiff. In any event, the court does not find that the defendants have been at all responsible for the delay. In fact, it was the defendants' application that sought to release to both sides the funds held by the Department of Finance. After weighing the relevant factors in this case, the court finds that, on balance, principles of equity favor tolling the accrual of interest as of July 9, 2018. The order tolling interest will, hopefully, finally bring an end to this litigation and will ensure that the plaintiff is promptly paid in this case.

At this point in time, the Clerk of the court has calculated prejudgment interest on the award of $325,000 in compensatory{**62 Misc 3d at 600} damages. That amount, when added to the award of $250,000 in punitive damages, as well as the costs in this case, brings the award up to the sum of $814,692.40, which, of course, does not include postjudgment interest. As noted, however, an award of postjudgment interest must be calculated and entered by the Clerk of the court.

The court directs the Clerk to calculate postjudgment interest on the combined award of $575,000 in both compensatory damages and punitive damages. The plaintiff is then directed to enter judgment in that amount within 60 days of the entry of this decision order. It behooves the plaintiff to hire an attorney for the purpose of preparing that judgment.

At this point in time, the modified judgment to be submitted by the plaintiff is only to include the Clerk's calculation of postjudgment interest on the combined award of $575,000 in compensatory and punitive damages.

Accordingly, it is hereby ordered that the judgment previously entered in this case on June 11, 2018, is modified solely to include an award of postjudgment interest on the total award of $575,000 in compensatory and punitive damages, as set by the Appellate Division in 2017; and it is further ordered that the plaintiff is directed to submit an order to this court in accordance with this decision and order; and it is further ordered that, once the court signs such order, the Clerk of this court is to calculate interest at the statutory rate of 9% on the total award of $575,000 ($325,000 compensatory damage award as well as the $250,000 punitive damage award); and it is further ordered that the Clerk of this court is to calculate postjudgment interest from January 29, 2018, to July 9, 2018; and it is further ordered that, once the Clerk calculates postjudgment interest in this case, an order in accordance with this decision must be presented to this court within 60 days of the filing of that modified judgment. Specifically, such order must direct the New York City Department of Finance to release immediately the funds to the plaintiff in an amount that satisfies the judgment of $814,692.40 that has already been entered in this case, as well as the modified judgment containing the postjudgment interest that will be calculated by the Clerk of this court on the award of $575,000 in compensatory and punitive damages. Such order must also direct that the New York City Department of Finance release the remaining balance, if any, to the defendants, together with any interest that has accrued on such deposited funds.