Opinion
02 Civ. 0504 (RCC).
January 3, 2006
Bryon L. Friedman, Esq. Wilson, Elser, Moskowitz, Edelman Dicker LLP White Plains, NY.
Donald G. Sweetman, Esq. Gennet, Kallmann, Antin Robinson, P.C. Pasippany, NJ.
MEMORANDUM ORDER
I. Background
On March 8, 2005, this Court granted Plaintiff's motion for summary judgment on its breach of contract and negligence claims against Defendant. In so doing, it awarded Plaintiff judgment in the amount of $378, 733.45. Plaintiff now moves, pursuant to Federal Rule of Civil Procedure 59(e), to amend the judgment to include pre-judgment interest in the amount of $155,175.36. For the reasons explained, Plaintiff's motion is granted.
II. Discussion
The facts giving rise to this dispute are summarized at The Goodyear Tire Rubber Co. v. Kirk's Tire Auto Servicecenter of Haverstraw, Inc., 2005 WL 550940, at *1-3 (S.D.N.Y. Mar. 9. 2005). Defendant does not dispute that Plaintiff is due pre-judgment interest pursuant to N.Y. Civ. Prac. L. R. 5001 ("Interest shall be recovered upon a sum awarded because of a breach of performance of a contract . . . from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred."). The only dispute arises from the date from which the interest should be computed.
Plaintiff argues that there are two relevant ascertainable dates from which the Court should compute the pre-judgment interest. Plaintiff paid the Lessor $392,851.58 on August 13, 1999 and $114, 615.21 on December 31, 2002. (Loomba Aff. Ex. 4.) Accordingly, Plaintiff argues statutory interest of 9 percent should be awarded (a) on the sum of $392,851.58 from August 14, 1999 to the date of the entry of judgment, March 10, 2005, and (b) on the sum of $114, 615.21 from January 1, 2003 to March 10, 2005, for a total of $155,175.36.
Defendant does not dispute that Plaintiff made payments to the Lessor on those dates. Rather, it argues that it should not be penalized in the form of pre-judgment interest simply because Plaintiff chose to pay the Lessor as a matter of convenience without first submitting the claim to the insurers. Therefore, Defendant submits that the date on which Plaintiff's obligation to the Lessor actually arose, is not discoverable and that the date from which pre-judgment interest should be calculated is the date the complaint was filed — January 22, 2002 — for a total of $92, 637.58.
This Court previously found that the Sublease between Plaintiff and Defendant contained the clear term that Defendant would indemnify Plaintiff for losses caused by Defendant's employees violations of "law, ordinance or regulation." Goodyear Tire, 2005 WL 550940, at *4 ( quoting Goodyear-Kirk's Sublease ¶ 13). Additionally, the Court found that there was no dispute that "the net effect of [Goodyear's self-described insurance program] caused Goodyear to pay [the Lessor] Frost the full replacement value" of the property. Id. at *5. In so holding, the Court relied on the checks Goodyear paid to the Lessor on August 13, 1999 and December 31, 2002. Id. at *5 (citing Carr Decl. Ex. 12 (attaching checks paid from by Goodyear to Frost)); see also Pl.'s Notice of Mot. to Am. J. Ex. 4 (attaching original Carr Declaration and copies of checks). Accordingly, the Court finds that August 13, 1999 and December 31, 2002 are ascertainable dates from which to compute the pre-judgment interest that Defendant owes Plaintiff. The judgment will be amended to include pre-judgment interest in the amount of $155,175.36 for a total judgment of $533,908.81.
III. Conclusion
For the reasons explained above, Plaintiff's motion to amend the judgment to award pre-judgment interest is granted. The judgment will be amended to the amount of $533,908.81.
So Ordered.