Radec Corp. v. KMart Corp.

—Judgment unanimously reversed on the law without costs and motion denied. Memorandum: In litigation arising from the construction of a KMart store in Batavia, plaintiff, The Radec Corporation (Radec), who was then a defendant, asserted a cross claim against the general contractor, defendant Dominick P. Massa & Sons, Inc. (Massa), for the unpaid balance due under its subcontract. Supreme Court erred in granting Radec’s motion for summary judgment seeking, inter alia, prejudgment interest (see, CPLR 5001) calculated from January 1, 1995 on partial payments made by Massa in April and May 1995 and January 1996. Prejudgment interest is computed from the date on which a subcontractor’s work is completed (see, Brent v Keesler, 32 AD2d 804, 805; Elliott v Gian, 19 AD2d 196, 198-199). On this record, it cannot be determined as a matter of law when Radec completed its performance under the subcontract (see, Koko Contr. v State of New York, 215 AD2d 898, 900; Mid-State Precast Sys. v Corbetta Constr. Co., 202 AD2d 702, 707, lv dismissed 84 NY2d 923, 86 NY2d 855). We reject Massa’s contention that, pursuant to the “pay-when-paid” clause of the subcontract, the payments were not late. Because the “pay-when-paid” clause transfers the risk of the owner’s default from Massa, the general contractor, to Radec, a subcontractor, that clause “violates New York public policy as set forth in the Lien Law” (West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148, 153). The court properly applied West-Fair to this case, which was pending when West-Fair was decided (see, Gager v White, 53 NY2d 475, 483). In any event, “[a] judicial decision construing the words of a statute * * * does not constitute the creation of a new legal principle” entitled to prospective application only (Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 192, rearg denied 56 NY2d 1004 567, cert denied 459 US 837; see, People v Favor, 82 NY2d 254, 262-263, rearg denied 83 NY2d 801; Matter of Americorp Sec. v Sager, 239 AD2d 115, lv denied 90 NY2d 808). (Appeal from Judgment of Supreme Court, Genesee County, Mahoney, J.— Summary Judgment.) Present — Denman, P. J., Lawton, Wisner, Balio and Boehm, JJ.