Summary
In Valloni v Crisona (170 AD2d 596 [2d Dept 1991], the Court instructed, at 597, that "the single disparaging comment... made by the plaintiff's counsel... did not warrant the granting of a mistrial."
Summary of this case from Searcy v. N.Y.C. Transit Auth.Opinion
February 19, 1991
Appeal from the Supreme Court, Westchester County (Facelle, J.).
Ordered that the judgment entered March 3, 1989, in favor of the plaintiff and against the defendant is modified, on the law, deleting from the first subparagraph of the decretal paragraph the sum of $250,240 and substituting therefor the sum of $174,800, and by deleting from the second subparagraph of the decretal paragraph the sum of $251,188 and substituting therefor the sum of $175,748; as so modified, the judgment entered March 3, 1989, in favor of the plaintiff and against the defendant is affirmed; and it is further,
Ordered that the judgment entered March 3, 1989, in favor of the third-party defendant Frank Valloni, Sr., is affirmed; and it is further,
Ordered that the order entered July 5, 1989, denying the defendant's motion to amend and reduce the judgment in favor of the plaintiff to the sum of $160,425 is affirmed; and it is further,
Ordered that the appeal from the order entered July 5, 1989, denying the defendant's motion to vacate the judgment in favor of the third-party defendant, is dismissed as abandoned; and it is further,
Ordered that the respondents are awarded one bill of costs.
This case arises from the defendant's default on a promissory note given to the plaintiff as part of an agreement wherein the defendant purchased a taxi and limousine business. Contrary to the defendant's contentions, he was not denied a fair trial by the court's rulings with respect to the cross-examination of his wife regarding the sale of the business to a third party during the pendency of the action, as such evidence was highly probative of the value of the business (see generally, Plaza Hotel Assocs. v Wellington Assocs., 37 N.Y.2d 273). Furthermore, the single disparaging comment subsequently made by the plaintiff's counsel regarding the sale did not warrant the granting of a mistrial (see, Dunne v Lemberg, 54 A.D.2d 955; cf., Bagailuk v Weiss, 110 A.D.2d 284).
Similarly, we discern no error in the court's exclusion from evidence of the entire daily fares log book for the business (see, CPLR 4518 [a]; Matter of Leon RR, 48 N.Y.2d 117), its denial of the defendant's application to disqualify the plaintiff's counsel (see generally, Matter of Reichenbaum v Reichenbaum Silberstein, 162 A.D.2d 599; Amrod v Doran, 107 A.D.2d 575) or its giving of a missing witness instruction to the jury (see, Pallotta v West Bend Co., 166 A.D.2d 637; Rosa v Blander, 47 A.D.2d 865; Rice v Ninacs, 34 A.D.2d 388).
However, we find that the computation of interest on the damages awarded to the plaintiff was erroneous. It is well settled that where, as here, the parties' agreement provides that interest shall be paid at a specified rate until the principal is paid, the rate of interest set forth in the agreement (rather than the statutory rate) governs until the principal is paid or the agreement is merged into a judgment (see, Slutsky v Blooming Grove Inn, 147 A.D.2d 208, 213; Ward v Walkley, 143 A.D.2d 415, 417; Citibank v Liebowitz, 110 A.D.2d 615; Schwall v Bergstol, 97 A.D.2d 540; Astoria Fed. Sav. Loan Assn. v Rambalakos, 49 A.D.2d 715; Stull v Joseph Feld, Inc., 34 A.D.2d 655). Pursuant to the terms of the promissory note in this case, the plaintiff is entitled to recover the outstanding principal debt of $115,000 plus interest installments at the rate of 12% per annum (which the parties fixed at monthly interest installments of $1,150), from November 1, 1984, to the entry of judgment on March 3, 1989. Hence, the plaintiff is entitled to an award of principal and contract interest in the amount of $174,800, plus costs and disbursements in the amount of $948, for a total award of $175,748, plus interest at the statutory rate from the date of judgment forward (see, CPLR 5004; Slutsky v Blooming Grove Inn, supra). Inasmuch as the judgment in favor of the plaintiff improperly awards him both the contract rate of interest and the statutory rate of interest for the period preceding the entry of the judgment, we have reduced the award accordingly.
Finally, the defendant has failed to pursue his appeal from the order denying his motion to vacate the judgment in favor of the third-party defendant Frank Valloni, Sr.; hence, we dismiss that appeal as abandoned. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.