Summary
permitting counsel to examine opposing party's former employee about communications with party's counsel in preparation for former employee's deposition
Summary of this case from Pastura v. CVS CaremarkOpinion
96 Civ. 8667 (RPP)
May 18, 2000
Counsel for Plaintiffs: Michael D. Hess, Corporation Counsel of the City of New York, New York, NY.
Counsel for Defendant: Kronish, Lieb, Weiner Hellman LLP, New York, NY.
OPINION AND ORDER
The jury in this diversity action rendered a verdict in the amount of $800,000 in favor of Plaintiffs ("the City") on their claim of breach of contract based on overpayments for Coastal Oil's oil deliveries to city agencies from October 19, 1992 to October 30, 1993. The verdict form did not request that the jury specify the date from which prejudgment interest on the contract damages should be computed. The City moves pursuant to New York Civil Practice Law and Rules ("CPLR") § 5001(c) for an order from the Court fixing the date from which prejudgment interest should be calculated as April 15, 1993.
BACKGROUND
Under CPLR § 5001, when a jury is discharged without specifying the date from which interest is to be computed, "the court upon motion shall fix the date." CPLR § 5001(c).
Section 5001(b) states that:
Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.
CPLR § 5001(b). The City argues that because it proved damages for overcharges on each delivery made by Defendant ("Coastal") during the period from October 19, 1992 to October 30, 1993, as shown in Exhibit 23A, it is entitled to prejudgment interest calculated for all deliveries using a reasonable intermediate date during that period. (Plaintiffs' Memorandum of Law in Support of Motion to Fix Date of Accrual for Prejudgment Interest ("Pl. Mem.") at 2.) Referring to Exhibit 32D, the City points out that by or about February 15, 1993, deliveries of oil representing one-half of the damages awarded by the jury had been made. (Pl. Mem. at 4, 5.) Coastal does not dispute that by approximately February 15, 1993, one-half of the deliveries had been made. Rather, Coastal's contention is that, at trial, the City failed to set forth evidence of when payments were made to Coastal for those deliveries, and that, therefore, the Court does not have a sufficient basis to fix a reasonable intermediate date and should instead compute prejudgment interest from the date of the commencement of the instant action. (Defendant's Memorandum in Opposition to Plaintiffs' Motion to Fix Date of Accrual of Prejudgment Interest at 1.)
DISCUSSION
The City is entitled to prejudgment interest accruing from a reasonable intermediate date if it is possible to fix such a date. The reasonable intermediate date method of computing prejudgment interest applies in cases involving multiple or recurring damages. See Esquire Radio Electronics. Inc. v. Montgomery Ward Co., Inc., 804 F.2d 787, 796 (2d Cir. 1986) (stating that a reasonable intermediate date is to be used for cases involving anticipatory repudiation on payments due over a period of time); Transportation Displays Inc. v. Winston, 870 F. Supp. 74, 78 n. 6 (S.D.N.Y. 1994) (reasonable intermediate date used where several payments were received over the course of a month). Furthermore, "where damages are incurred at various times after the cause of action accrues, section 5001 grants courts wide discretion in determining a reasonable date from which to award pre-judgment interest." Conway v. Icahn Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994) (emphasis added). The purpose of awarding interest is "to make whole the party aggrieved." Kaiser v. Fishman, 590 N.Y.S.2d 230, 234 (2d Dept. 1992); See also Esquire Radio, 804 F.2d at 796 (noting "compensatory purpose of section 5001").
The City argues that a reasonable intermediate date would be April 15, 1993, because for deliveries made prior to or about February 15, 1993, overcharges of #2 fuel oil amounted to $400,000 — half of the amount the jury awarded the City — and the trial testimony of Michael Spitzer, a bureau chief at the office of the Comptroller of the City of New York, and the Reply Declaration of Lloyd Moore, who testified at trial that he prepared Ex. 23A, indicate that approximately sixty days is a reasonable estimation of the lapse of time between delivery date and payment date. (Plaintiffs' Reply Memorandum of Law in Support of Motion to Fix Date of Accrual for Prejudgment Interest at 4.) The trial testimony of Mr. Spitzer and the Reply Declaration of Mr. Moore respectively state that, in 1992 and 1993, the City adhered to its policy of paying its bills within thirty days after processing payment vouchers, (Trial Transcript at 409-10), and that the average number of days between delivery dates and voucher dates for deliveries with ticket dates between October 19, 1992 and October 30, 1993 was thirty days (Reply Declaration of Lloyd Moore in Support of Motion to Fix Date of Commencement for Prejudgment Interest, dated March 28, 2000, ¶ 3).
The City also submitted the reply declarations of Frank Boccia, dated March 24, 2000, and Virginia Arana, dated March 28, 2000. CitingLangdon v. Taylor, 180 F. 385 (2d Cir. 1910), Defendant argues that the reply declarations of Virginia Arana, Frank Boccia, and Lloyd Moore should be disregarded and stricken, because these declarations constitute new evidence and the evidentiary record in this case is closed. (Defendant's Letter to the Court dated March 30, 2000 ("Def. Letter") at 1.) Langdon is not supportive of the Defendant's position because there is no indication in Langdon that, as in this case, the matter at issue was one which, under a controlling statute, could properly be decided by a court after a jury is discharged. Cf. EEOC v. Colgate-Palmolive Co., 612 F. Supp. 1476, 1480 (S.D.N.Y. 1985) (court considered post-trial affidavit which conflicted with trial testimony but resolved conflict in favor of trial testimony where calculation of damages left for resolution by the court after a jury verdict). The Court considered the Reply Declaration of Lloyd Moore to corroborate its own spot review of Exhibits 21A and 23A and in order to avoid further expense and delay. Cf. Pruzan v. Hias. Inc., 1986 WL 2962 (S.D.N.Y. March 3, 1986) (selecting the midpoint in the period for which back pay was calculated for "ease in calculation" and to "avoid further expense and delay"); Zimmer v. Wells Management Corp., 366 F. Supp. 215, 216 (S.D.N.Y. 1973) (selecting the midpoint between defendant's breach and the expiration date of the contract at issue "in order to avoid further delay and expense" where the record did not indicate the frequency of plaintiffs salary payments). Defendant also argues that the reply declarations were not in response to new matters raised in Defendant's opposition papers. (Def. Letter at 1.) The declarations are responsive to Defendant's opposition papers in that they seek to rebut Defendant's assertions that the City did not present evidence which linked payment and delivery dates.
Title 9, Section 6-07(c)(2)(i), of the New York City Rules and Regulations, (Exhibit 1C1), states that the required payment date is 30 calendar days from the date of receipt or acceptance of the invoice as defined in § 6-07(b). Similarly, Section 7.2(b) of Part III of The New York City Purchase Contract, (Exhibit 1B), states that "[w]hen periodic deliveries are made during the month, such invoices will be payable within thirty (30) days after either the end of the month or the receipt of invoices or acceptance of the Goods, whichever date is latest."
At trial, the City did not introduce testimony about the period of time between the dates of delivery and the issuances of the corresponding vouchers. Instead, it proved its damages by demonstrating that all of its checks for oil deliveries by Coastal were based on vouchers, that those checks cleared, and that Coastal's oil deliveries under the contract from October 19, 1992 to October 30, 1993 were vouchered at prices above the contract's formula due to Coastal's actions.
Exhibits 21A and 23A, introduced by the City at trial, however, do contain evidence of the length of time between the dates of delivery and the dates of payment of each of the thousands of deliveries made by Coastal under the contract. Unfortunately, those exhibits are not in a form which permits a calculation of when half of the City's overpayments occurred so that a reasonable intermediate date can be ascertained without laborious effort. Exhibit 21A, which includes checks issued for payment to Coastal from October 1992 to October 1993, lists voucher numbers along with the date that each check cleared. Exhibit 23A lists the delivery dates, along with voucher numbers, of number 2 and number 2D fuel oil for purchases from Coastal for the period from October 19, 1992 through October 30, 1993.
The Court has done a spot review of twenty voucher numbers in Exhibits 21A and 23A and found that all the checks in payment of those vouchers cleared within less than 60 days of the delivery date. (Exhibit A of this Opinion and Order lists the voucher numbers for which the Court verified the lapse of time between delivery and payment.)
Accordingly, based on the Court's spot review of the trial exhibits, corroborated by Mr. Moore's Reply Declaration, the Court finds that, since half of the oil deliveries under the contract occurred on February 15, 1993, April 15, 1993 is a reasonable estimation of the mid-point of the actual payments made by the City to Coastal, and that computation of interest from that date properly compensates the City. See Transportation Displays, 870 F. Supp. at 78 n. 6 (selecting July 15 as a reasonable intermediate date where several payments were made during July); National Utility Service. Inc. v. Blue Circle. Inc., 793 F. Supp. 52, 56 (N.D.N.Y. 1992) (selecting the median date between the accrual of the cause of action and the final month for which an invoice was submitted); Pruzan v. Hias. Inc., 1986 WL 2962, *1 (S.D.N.Y. March 3, 1986) (selecting the midpoint in the period for which back pay was calculated); Zimmer v. Wells Management Corp., 366 F. Supp. 215, 216 (S.D.N.Y. 1973) (selecting the midpoint between defendant's breach and the expiration date of the contract at issue).
Pursuant to § 5001(c), it is ordered that the clerk of the court shall compute the amount of prejudgment interest owed to the City from April 15, 1993 to February 23, 2000, the date the verdict was rendered.
IT IS SO ORDERED.
Exhibit A
Voucher Number Delivery Date (Ex. 23A) Check Clearance Date (Ex. 21A) 827-3S04491 10/19/92 (at 1) 11/27/92 (at 770) 846-3W01847 10/20/92 (at 2) 12/4/92 (at 1414) 069-3C05844 11/4/92 (at 15) 12/4/92 (at 409) 057-3003439 11/9/92 (at 20) 12/17/92 (at 203) 841 3011343 12/18/92 (at 57) 2/1/93 (at 1221) 069-3C08989 1/5/93 (at 71) 2/19/93 (at 439) 841 3013946 1/25/93 (at 88) 3/10/93 (at 1234) 056-3011826 2/4/93 (at 98) 3/19/93 (at 108) 827-3S12800 3/26/93 (at 144) 5/13/93 (at 967) 057-3008038 4/17/93 (at 166) 6/1/93 (at 315) 827-3S16036 5/10/93 (at 181) 6/23/93 (at 1002) 827-3S17492 6/4/93 (at 196) 7/12/93 (at 1020) 827-4S00442 7/14/93 (at 218) 8/25/93 (at 1051) 827-4S01537 8/9/93 (at 232) 9/22/93 (at 1068) 069-4C01928 8/19/93 (at 238) 10/4/93 (at 524) 069-4C01982 8/24/93 (at 240) 10/4/93 (at 524) 069-4C02254 9/9/93 (at 248) 10/25/93 (at 526) 827-4S02561 9/14/93 (at 250) 10/20/93 (at 1088) 827-4S03212 10/4/93 (at 261) 11/18/93 (at 1114) 827-4S04620 10/29/93 (at 278) 12/9/93 (at 1124)