Bosco v. AlicinoBosco v. Alicino
Judgment of Supreme Court, New York County, entered October 30, 1970, aftеr trial before Levey, J., unanimously modified, on the law, the facts apd in the exercise of discretion, to the extent оf providing (1) that the judgment against plaintiff, entered on February 2, 1961 in thе sum of $10,914.75, which was declared to be in full force and effeсt, shall bear interest only from October 30, 1970, and (2) that insofar as the judgment herein awards' defendant Alicino the further sum of $10,050.34, that award shall bear interest only from October 30, 1970, and, as so modified, the judgment is affirmed, without costs and without disbursements. The essential facts in this litigation were stipulated for the purpose of trial. Defendant Alicino had obtained a deed to the premises involved herein through an invalid execution upon a judgment entered in February, 1961 following a default by plaintiff upon a settlеment of a foreclosure action. In the instant suit brought pursuant to the Real Property Actions and Proceedings Law, it has been determined that the deed obtained by Alicino in 1961 is void; thаt the judgment entered on February 2, 1961 for $10,914.75 should be reinstated; and that Alicino is entitled to the sum of $10,050.34 found, after a reference, to be the excess of expenditures over recеipts during the period Alicino was in possession of the premises. The findings and conclusions of the trial court in respect of those determinations are affirmed. However, we сonclude that it was an improvident exercise of discrеtion not to have limited interest both on the reinstated judgment оf February 2, 1961 and the additional recovery awarded to Alicino to a period subsequent to October 30, 1970. Since this is an аction of an equitable nature, the recovery of interest is within the court’s discretion. (Shubert v. Lawrence, 27 A D 2d 292, 297; Spadanuta v. Incorporated Vil. of Rockville Centre, 20 A D 2d 799, 800, affd. 15 N Y 2d 755; CPLR 5001, subd. [a].) The exercise of that discretion will he governed by particular facts in each case. None of the criteria which prompt the аward of interest appears in this case. As to the judgment of February, 1961, from one standpoint it had been satisfied up to the time of the entry of the judgment herein; and it would be inequitable tо require plaintiff to pay interest for the period of nonexistence of that judgment. At the same time, the situation in which thе parties found themselves resulted from faulty conduct on both sides. Since Alicino contributed to the imbroglio, the dictates of equity are sufficiently satisfied if Alicino is made whole by being reimbursed for any deficit he incurred while in possession of, and operating, the premises, which it is now determined belonged to plaintiff.