FILED: NASSAU COUNTY CLERK 10/10/2018 09:51 AM
`NYSCEF DOC. NO. 142
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`INDEX NO. 606597/2015
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`RECEIVED NYSCEF: 10/10/2018
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`SUPREME COURT-STATE OF NEW YORK
`SHORT FORM ORDER
`Present:
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`HON. TIMOTHY S. DRISCOLL
`Justice Supreme Court
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`NASSER SAMMAN, (cid:9)
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`Plaintiff,
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`- against - (cid:9)
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`ALROSE GROUP, LLC, (cid:9)
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`Defendant.
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`TRIAL/IAS PART: 11
`NASSAU COUNTY
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`Index No: 606597-15
`Motion Seq. No. 7
`Submission Date: 9/21/18
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`The following papers have been read on this motion:
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`Notice of Motion (cid:9)
`Affirmation in Support and Exhibits (cid:9)
`Memorandum of Law in Support (cid:9)
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`This matter is before the Court for decision on the unopposed motion filed by Plaintiff
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`Nasser Samman ("Samman" or "Plaintiff') on September 5,2018 and submitted on
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`September 21, 2018. For the reasons set forth below, the Court grants the motion and awards
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`Plaintiff statutory pre-judgment interest as follows: 1) from September 30, 2015 with respect to
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`the cause of action alleging a breach of the Bankruptcy Clause in the parties' agreement; and
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`2) from November 15,2015 with respect to the cause of action alleging a breach of the
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`Termination Clause in the parties' agreement. The Court directs Plaintiff to submit judgment on
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`five (5) days notice.
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`A. Relief Sought
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`BACKGROUND
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`Plaintiff moves for an Order fixing the dates upon which Plaintiff may collect statutory
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`pre-judgment interest from Defendant's breach of contract and directing the Clerk of the Court to
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`calculate said statutory interest to be recovered upon the sum awarded to Plaintiff by the jury
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`verdict dated July 12, 2018, from the respective dates giving rise to the breach of contract.
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`Defendant has not submitted any response to the motion.
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`FILED: NASSAU COUNTY CLERK 10/10/2018 09:51 AM
`NYSCEF DOC. NO. 142
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`INDEX NO. 606597/2015
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`RECEIVED NYSCEF: 10/10/2018
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`The Parties' History
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`The parties' history is set forth in detail in prior decisions of the Court and the Court
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`incorporates the prior decisions by reference as if set forth in full herein. This matter proceeded
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`to a jury trial before the Court, which resulted in a verdict on July 12, 2018 in favor of Plaintiff
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`on both causes of action in the complaint, each of which sounded in breach of contract. The jury
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`awarded Plaintiff as follows: $250,000.00 with respect to the breach of contract claim relating to
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`the Termination Clause in the parties' agreement ("Agreement"), and $250,000.00 with respect
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`to the breach of contract claim relating to the Bankruptcy Clause in the Agreement.
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`In support of the motion now before the Court, counsel for Plaintiff ("Plaintiffs
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`Counsel") affirms that the jury did not fix a date from which to compute interest. He affirms,
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`further, that following the jury verdict, counsel for Defendant advised Plaintiffs Counsel that
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`Defendant would make no further motion in this action or otherwise attempt to set aside the
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`verdict. In support of the motion, Plaintiffs Counsel provides copies of the following (Exs. 1-5
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`to Zabell Aff. in Supp.): the Extract of the Clerk's Minutes, dated July 12, 2018 (Ex. 1);
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`Plaintiffs Employment Agreement, dated July 3,2014 (Ex. 2); Alrose Allegria LLC's Notice of
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`Bankruptcy (Ex. 3); Alrose Allegria LLC d/b/a Allegria Hotel's August 18, 2015 Termination
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`Letter to Plaintiff (Ex. 4); and an email sent from counsel for Defendant to Plaintiffs Counsel,
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`dated July 26, 2018 (Ex. 5).
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`The Parties' Positions
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`Plaintiff submits that, for the purposes of determining the appropriate date from which
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`interest should accrue pursuant to CPLR § 5001, the earliest ascertainable dates on which
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`Plaintiff had cognizable causes of action were: September 30, 2015 as to the Bankruptcy Clause;
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`and November 15, 2015 as to the Termination Clause. Plaintiff asserts that these dates are taken
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`from the timetable established by the Agreement, which set the dates on which Plaintiff was to
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`receive contractual payments at ninety (90) days from the date that Defendant filed for
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`bankruptcy, and three (3) months from the date of Plaintiffs wrongful termination.
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`FILED: NASSAU COUNTY CLERK 10/10/2018 09:51 AM
`NYSCEF DOC. NO. 142
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`INDEX NO. 606597/2015
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`RECEIVED NYSCEF: 10/10/2018
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`RULING OF THE COURT
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`A. Recovery of Interest
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`CPLR § 5001 provides as follows:
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`Actions in which recoverable. Interest shall be recovered upon a sum awarded because
`of a breach of performance of a contract, or because of an act or omission depriving or
`otherwise interfering with title to, or possession or enjoyment of, property, except that in
`an action of an equitable nature, interest and the rate and date from which it shall be
`computed shall be in the court's discretion.
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`Date from which computed. Interest shall be computed from the earliest ascertainable
`date the cause of action existed, except that interest upon damages incurred thereafter
`shall be computed from the date incurred. Where such damages were incurred at various
`times, interest shall be computed upon each item from the date it was incurred or upon all
`of the damages from a single reasonable intermediate date.
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`Specifying date; computing interest. The date from which interest is to be computed
`shall be specified in the verdict, report or decision. If a jury is discharged without
`specifying the date, the court upon motion shall fix the date, except that where the date is
`certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit.
`The amount of interest shall be computed by the clerk of the court, to the date the verdict
`was rendered or the report or decision was made, and included in the total sum awarded.
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`CPLR § 5001(6) requires that prejudgment interest be computed from the earliest
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`ascertainable date on which the prevailing party's cause of action existed. Ogletree, Deakins,
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`Nash, Smoak & Stewart, P.C. v. Albany Steel, 243 A.D.2d 877, 880 (3d Dept. 1997). If that date
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`cannot be ascertained with precision, the computation shall be from the earliest time at which it
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`may be said the cause of action accrued. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. v.
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`Albany Steel, 243 A.D.2d at 880, quoting Govern & McDowell v. McDowell & Walker, 75
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`A.D.2d 979, 980 (3d Dept. 1980). Where damages are incurred at various times after the cause
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`of action accrues, Section 5001 grants courts wide discretion in determining a reasonable date
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`from which to award pre-judgment interest. Conway v. Icahn & Co., Inc., 16 F.3d 504, 512 (2d
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`Cir. 1994) citing Cotazino v. Basil Dev. Corp., 167 A.D.3d 632 (3d Dept. 1990); Ginett v.
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`Computer Task Group, Inc., 862 F.2d 1085 (2d Cir. 1992).
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`B. Application of these Principles to the Instant Action
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`The Court grants the motion and awards Plaintiff statutory pre-judgment interest as
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`follows: 1) from September 30, 2015 with respect to the cause of action alleging a breach of the
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`FILED: NASSAU COUNTY CLERK 10/10/2018 09:51 AM
`NYSCEF DOC. NO. 142
`
`INDEX NO. 606597/2015
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`RECEIVED NYSCEF: 10/10/2018
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`Bankruptcy Clause in the parties' agreement; and 2) from November 15, 2015 with respect to the
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`cause of action alleging a breach of the Termination Clause in the parties' agreement. The Court
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`is persuaded that, for the reasons outlined in Plaintiff's Memorandum of Law in Support, these
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`are the earliest ascertainable dates on which Plaintiff's causes of action existed.
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`All matters not decided herein are hereby denied.
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`This constitutes the decision and order of the Court.
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`The Court directs Plaintiff to submit judgment on five (5) days notice.
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`DATED: Mineola, NY
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`October 5,2018
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`ENTER
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`HON. TIMOTHY S. DRISCOL
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`J.S.C.
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`ENTERED
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`OCT 1 0 2018
`NASSAU COUNTY
`COUNTY CLERK'S OFFICE
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