Peykarian v Tobin

[*1] Peykarian v Tobin 2020 NY Slip Op 51565(U) Decided on December 30, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 30, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
2016-2411 Q C

Sinai Peykarian, Appellant,

against

Thomas Tobin, Respondent.

Stephen David Fink, for appellant. Thomas Tobin, respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 6, 2016. The order denied plaintiff's motion to modify a judgment to include prejudgment interest.

ORDERED that the order is affirmed, without costs.

After a nonjury trial of this action, in a decision dated October 9, 2014, the court awarded plaintiff "$18,700 plus interest to run from the date of the judgment, costs and disbursements." A judgment in plaintiff's favor was subsequently entered on November 24, 2014 in accordance with the decision. In 2016, plaintiff moved to modify the judgment to include prejudgment interest. By order entered April 6, 2016, the Civil Court denied the motion.

Plaintiff made a postjudgment motion, in effect pursuant to CPLR 5019 (a), to modify the judgment to include an award of prejudgment interest. Since the Civil Court's decision after trial explicitly determined that interest should run from the date of the judgment, and the judgment was subsequently entered in accordance with the decision, the Civil Court lacked the power pursuant to CPLR 5019 (a) to grant the relief sought, which relief involves a substantive right (see Kiker v Nassau County, 85 NY2d 879 [1995]). Such relief was only available on a direct appeal from the judgment (see id.).

Accordingly, the order is affirmed.

ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 30, 2020