Opinion
November 13, 1981
Appeal from the Onondaga Supreme Court, J. O'C. Conway, J.
Present — Cardamone, J.P., Callahan, Doerr, Denman and Schnepp, JJ.
Judgment affirmed, without costs. All concur, Cardamone, J.P., not participating. Memorandum: Plaintiff appeals from so much of the amended judgment of Supreme Court, Onondaga County, entered April 1, 1981, as awarded monetary damages to plaintiff with interest at the statutory rate of 6%. The only issue on appeal is whether plaintiff is entitled to interest at the then statutory interest rate of 6% per annum or at a rate of interest realized on conservative investment yields for the years in question as testified by the expert witness. Plaintiff justifiably maintains that defendant in delaying its remittances has realized an economic gain on plaintiff's money which should be paid over to plaintiff as part of its damages. It was precisely to correct this unjust imbalance that CPLR 5004 has recently been amended to increase the rate of interest payable upon claims, verdicts and judgments from its previous level of 6% to 9% (L 1981, ch 258, eff June 25, 1981). At the time of the entry of the judgment herein the court properly assessed the interest at 6% per annum (CPLR 5004). Unless discretion is given the court (CPLR 5001, subd [a]), interest should not be awarded without specific legislative authority (Kay Lewis Enterprises v. "Lewis-Marshall Joint Venture", 59 Misc.2d 862).