Opinion
February 26, 1987
Appeal from the Supreme Court, New York County (Richard W. Wallach, J.).
By prior order ( 94 A.D.2d 29) of this court a constructive trust was imposed on, inter alia, certain art work owned by the parties. The amended order and judgment on this appeal delineated the precise division and distribution of the property. As to those works of art still possessed by the parties, the court devised a scheme whereby the ownership of the specific works of art would be distributed. As to those works of art which had been sold by the defendant husband during the long pendency of this action, the court awarded the plaintiff 35% of the net proceeds, of which $1,084,000 was established to be plaintiff's share after certain adjustments.
The plaintiff should be awarded prejudgment interest on this sum. The sales of these art works, made at various times during the 10-year period from 1973 to 1983, deprived the plaintiff of her share of what would have been a tremendous appreciation in the value of said works had they not been sold. Needless to say, only the defendant had full benefit and use of the cash proceeds during this time. As a consequence, he should be required to pay interest for the use of such moneys.
By imposing a constructive trust upon the defendant, our previous order expressly recognized that defendant would be unjustly enriched if the proceeds from the sale of the art works were left in his hands alone. Since the constructive trust imposed on defendant a duty to pay the plaintiff a share of the value of the benefit which he has received, there is also a duty to pay interest on the value of the benefit received. (See generally, Restatement of Restitution §§ 156-157.) To do otherwise would be an injustice to the plaintiff, who has been deprived since 1973 of the benefit of the cash proceeds which have been determined to be rightfully hers.
Concur — Ross, J.P., Carro, Asch and Ellerin, JJ.