Opinion
2013-11-12
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.
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.
ANDRIAS, J.P., ACOSTA, SAXE, RENWICK, MANZANET–DANIELS, JJ.
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 A.D.3d 220, 221, 767 N.Y.S.2d 96 [1st Dept.2003], lv. denied2 N.Y.3d 706, 780 N.Y.S.2d 312, 812 N.E.2d 1262 [2004] ). Postreport interest on this distributive award is mandatory pursuant to CPLR 5002 and thus, should have been awarded (Moyal v. Moyal, 85 A.D.3d 614, 615, 927 N.Y.S.2d 19 [1st Dept.2011]; Haymes v. Haymes, 298 A.D.2d 117, 119, 748 N.Y.S.2d 542 [1st Dept.2002], lv. denied100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [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 A.D.2d 272, 276, 534 N.Y.S.2d 374 [1st Dept.1988] ).