Opinion
April 22, 1996
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is affirmed, with costs.
In this accounting proceeding, which is equitable in nature, the trial court, after a nonjury trial, issued an order which awarded the plaintiff the sum of $37,646 but which did not award interest. The plaintiff neither appealed from this order nor moved to reargue on the question of interest. Subsequently, the plaintiff entered a judgment which included the sum of $26,779.38 as prejudgment interest. The defendant moved to vacate the judgment, and the trial court granted the motion.
Since the judgment entered by the plaintiff contained a provision which had not been awarded by the trial court and to which he was not otherwise automatically entitled ( see, CPLR 5001 [a]), the trial court properly vacated the judgment and directed the plaintiff to submit a new one without the offending provision ( see, Hanlon v. Thonsen, 146 A.D.2d 743; see also, Gerenstein v Gerenstein, 188 A.D.2d 868; Green v. Morris, 156 A.D.2d 331). Moreover, based upon the record before us, the trial court's refusal to award interest was not an improvident exercise of discretion ( cf., Aurnou v. Greenspan, 161 A.D.2d 438). Balletta, J.P., Thompson, Santucci and Florio, JJ., concur.