Summary
noting that "preverdict interest is inconsistent with an award of treble damages under Judiciary Law § 487"
Summary of this case from Amalfitano v. RosenbergOpinion
2992, 2992A.
Decided March 2, 2004.
Judgment, Supreme Court, New York County (Louis York, J.), entered May 4, 2001, which, after a jury trial, found defendant Albert Socolov liable for breach of fiduciary duty and conversion, and awarded treble damages in the principal amount of $12,150, plus pre- and post-verdict interest and costs; dismissed the action as against the corporate defendant; and awarded judgment dismissing the action as against defendant William Socolov, without costs, unanimously modified, on the law and the facts, to vacate the award of pre-verdict interest, to vacate the award of damages and remaining interest insofar as made to plaintiff and to make that award instead to the corporation, and to award costs to defendant William Socolov, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered March 5, 2001, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
David Aronstam, for Plaintiff-Respondent.
Andrew M. Krisel, for Defendants-Appellants.
Before: Tom, J.P., Andrias, Sullivan and Friedman, JJ.
Plaintiff's decedent and William Socolov were each 50% shareholders in the closely held corporate defendant. This action was initially brought by the decedent in his individual and derivative capacities, after it was discovered that attorney Albert Socolov had made unauthorized disbursements from the corporate account.
Plaintiff, the substituted representative of the decedent's estate, concedes that the judgment awarded is for the benefit of the corporation. Plaintiff is entitled to his legal costs, but the damages and interest should go directly to the injured corporation ( Glenn v. Hoteltron Sys., 74 N.Y.2d 386). We modify accordingly ( Wolf v. Rand, 258 A.D.2d 401) to direct the award to the corporation not as a dismissed party defendant, but rather in its capacity as beneficiary of the derivative action as originally captioned when brought by the decedent.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly considered by the jury, and there is no basis for disturbing its determinations ( Cohen v. Hallmark Cards, 45 N.Y.2d 493). However, pre-verdict interest is inconsistent with an award of treble damages under Judiciary Law § 487 ( see Delulio v. 320-57 Corp., 99 A.D.2d 253).
As conceded by plaintiff's attorney at oral argument, defendant William Socolov is entitled to costs (CPLR 8101).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.