Theophilova v Dentchev

Theophilova v Dentchev 2013 NY Slip Op 07438 Decided on November 12, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2013
Andrias, J.P., Acosta, Saxe, Renwick, Manzanet-Daniels, JJ.
11037 309230/08

[*1]Galia Theophilova, Plaintiff-Appellant,

v

Todor Dentchev, Defendant-Respondent.




Law Office of Glenn S. Koopersmith, Garden City (Glenn S.
Koopersmith of counsel), for appellant.
Pryor Cashman LLP, New York (Melina Sfakianaki of counsel),
for respondent.

Judgment, Supreme Court, New York County (Laura E. Drager, J.), entered September 4, 2012, to the extent appealed from as limited by the briefs, granting awards to plaintiff wife for enhanced earning capacity and equitable distribution without interest, unanimously modified, on the law, to the extent of awarding plaintiff interest post-dating the Special Referee's report and recommendation at the statutory rate on the award of enhanced earning capacity, and otherwise affirmed, without costs.

The trial court properly exercised its discretion in declining to award interest predating the Special Referee's report and recommendation dated February 3, 2011 on the enhanced earning capacity award (see Rubin v Rubin, 1 AD3d 220, 221 [1st Dept 2003], lv denied 2 NY3d 706 [2004]). Postreport interest on this distributive award is mandatory pursuant to CPLR 5002 and thus, should have been awarded (Moyal v Moyal, 85 AD3d 614, 615 [1st Dept 2011]; Haymes v Haymes, 298 AD2d 117, 119 [1st Dept 2002], lv denied 100 NY2d 509 [2003]).

Plaintiff's arguments that she is entitled to interest, retroactive to the date of the commencement of this action on the remaining portion of the equitable distribution award, is unpreserved, and we decline to consider it in the interest of justice (see Recovery Consultants, Inc. v Shih-Hsieh, 141 AD2d 272, 276 [1st Dept 1988]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2013

CLERK