Opinion
Decided October 22, 1985
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Con. G. Cholakis, J.
Thomas G. Conway and Michael McCormick for appellants.
Arnold W. Proskin for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated, with costs.
Although it is not clear whether an article 78 proceeding, as has been taken here, or an application to amend the remittitur or final judgment in the prior proceeding is the appropriate procedural means of obtaining review (see, Brodsky v Murphy, 25 N.Y.2d 518, 520), in either case petitioner is not entitled to collect CPLR 5002 prejudgment interest on its claim. First, in the absence of a stay by Supreme Court, petitioner could have demanded payment of the $60,031.99 30 days after the Commissioner's determination and any time thereafter, but did not do so (Agriculture and Markets Law § 258-b [d]). Second, the Milk Producers Security Fund (Fund) is not designed to make a claimant whole, and does not compensate milk producers for actual losses but only as specified by statute (see, Agriculture and Markets Law § 258-b; see also, Northeast Dairy Coop. v Barber, 101 A.D.2d 362). Third, permitting the addition of CPLR 5002 prejudgment interest to Commissioner's awards, particularly where such interest could accumulate over the long course of sometimes delayed and protracted appeals, could threaten the vitality of the Fund, in contravention of the Legislature's intent that the Fund be prudently administered (see, Matter of Eastern Milk Producers Coop. Assn. v State Dept. of Agric. Mkts., 58 N.Y.2d 1097, 1100-1101). Finally, where the Legislature contemplates the payment of interest on certain claims, it has so specified in the statute (see, Agriculture and Markets Law § 258-b [e], [f]). If the Legislature contemplated that interest should be paid from the date of the Commissioner's award to entry of the final judgment, it would have so specified (see, Brodsky v Murphy, 25 N.Y.2d 518, supra). We reject the contention that our failure to refer to interest in the prior proceeding (see, Matter of National Farmers Org. v Barber, 59 N.Y.2d 866) was a "clerical error".
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.