Opinion
August 20, 1987
Appeal from the Supreme Court, New York County (Arthur Blyn, J.).
We affirm the judgment for the reasons stated below, except to vacate that portion of the judgment directing that as to the $20 million to be returned to the city, respondents must pay 9% interest as of March 29, 1983, the date the penalty was assessed. The right to interest is purely statutory. Under CPLR 7806, which specifies what relief may be granted in a judgment in a special proceeding, only restitution or damages which are incidental to the primary relief sought by the petitioner may be awarded.
The primary relief requested in this proceeding was a determination that respondent New York State Department of Social Services had acted arbitrarily and capriciously in applying a particular standard to its audit concerning the timeliness of petitioner's public assistance case closings and reductions. Incidental to that relief was a recovery of the penalty imposed on petitioner as a result of respondent's findings. Thus, a judgment awarding a return of that penalty was appropriate under CPLR 7806 as restitution incidental to the primary relief.
However, CPLR 7806 nowhere authorizes an award of interest under the circumstances presented.
Concur — Sandler, J.P., Carro, Kassal, Ellerin and Wallach, JJ.