Opinion
2005-1087 NC.
Decided June 29, 2006.
Appeals from orders of the District Court of Nassau County, First District (Anna R. Anzalone, J.), dated May 2, 2005 and July 27, 2005. The order dated May 2, 2005 granted defendant's motion to vacate a judgment, entered November 22, 2004 pursuant to an order dated June 21, 2004, in favor of plaintiff in the total sum of $1,806.50, and directed the entry of judgment against defendant in the sum of $500 plus 9% interest on that amount from the date of the June 21, 2004 order. The order dated July 27, 2005 denied plaintiff's motion for a stay of the May 2, 2005 order pending determination of the appeal.
Order dated May 2, 2005 affirmed without costs.
Appeal from order dated July 27, 2005 dismissed as moot.
PRESENT:: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
Plaintiff, an attorney, commenced the instant action against defendant, her former client. In the contract between the parties, the terms of which were later incorporated into a so-ordered stipulation, defendant consented that plaintiff would have a charging lien of 50% ($35,000) of the attorney's fee, with the remainder of the fee going to the attorney who succeeded plaintiff after defendant discharged her. Alleging in the complaint that defendant refused to sign a release, and that, as a result, plaintiff's contingency fee was held in defendant's new attorney's escrow account from July 7, 2003 until November 14, 2003, plaintiff sought to recover, inter alia, statutory prejudgment interest for the period from July 7, 2003 to November 14, 2003 and the cost of the attorney's fees that she incurred in recovering the contingency fee.
By order dated May 24, 2004, the court granted a motion by plaintiff for summary judgment to the extent of awarding plaintiff any interest that had been earned on the escrow account, costs and disbursements of the instant action, and $500 in attorney's fees. Thereafter, plaintiff wrote to the court requesting that it clarify the aforementioned order, and, by order dated June 21, 2004, the court specifically stated that plaintiff was entitled to any interest earned on the attorney's escrow account in which the contingency fee was held, $500 in attorney's fees and costs. (Neither side appealed from these orders.) Nevertheless, on November 22, 2004, plaintiff caused a judgment to be entered which included 9% statutory prejudgment interest based on the sum of $35,000. Defendant moved to vacate said judgment, and, by order dated May 2, 2005, the court granted said motion to the extent of vacating the judgment and directing plaintiff to enter a judgment for the sum of $500, plus 9% interest on that amount from the date of the June 21, 2004 order, noting that plaintiff had already received the interest ($35.12) which had accrued on the escrow account.
Plaintiff's contention that she is entitled to statutory prejudgment interest on the amount of $35,000 is not properly before this court on her appeal from the May 2, 2005 order, and should have been raised by appealing the order of May 24, 2004. In any event, the contention is without merit. A party is entitled to recover statutory prejudgment interest upon a sum awarded based on a breach of contract (CPLR 5001 [a]). Here, there was no monetary award for defendant's breach of contract because defendant caused plaintiff's contingency fee of $35,000 together with the interest earned on the attorney's escrow account ($35.12) to be released to plaintiff prior to the commencement of the instant action and plaintiff accepted said sum. Thus, there is no basis upon which to award plaintiff statutory prejudgment interest ( see Crane v. Craig, 230 NY 452, 461; JL Reporting Services of Westchester, Inc. v. Sussman Sussman, P.C., ___ Misc 3d ___, 2006 NY Slip Op ____, App Term, 9th 10th Jud Dists, Nov. 4, 2005, No. 2005-457 N C).
Plaintiff's contentions that the attorney's fee award of $500 was inadequate and that defendant should have been sanctioned for refusing to permit her attorney to disburse the legal fees are similarly not properly before this court on this appeal. We note, however, that defendant's alleged breach of the contract did not constitute "frivolous conduct" for which sanctions may be imposed (Rules of the Chief Administrator [22 NYCRR] § 130.1-1 [a], [b]). Accordingly, the lower court's order dated May 2, 2005, which granted defendant's motion to the extent of vacating the judgment entered on November 22, 2004 and directing the entry of a judgment for the sum of $500 together with 9% interest on that amount from June 21, 2004, is affirmed.
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.