Meloni v. Goord

—Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this civil contempt proceeding pursuant to Judiciary Law § 773, Supreme Court erred in awarding preverdict interest to petitioners. The court awarded that interest as an element of actual loss or injury caused by the noncompliance of the Commissioner of the New York State Department of Correctional Services (respondent) with a 1987 court order directing him to receive inmates on a timely basis (see, Matter of Monroe County v Cuomo, 132 AD2d 1003, Iv denied 70 NY2d 608). The parties stipulated that the loss actually sustained by petitioners was $1,700,000, and there is no support in the record for the conclusion that an additional award of $464,455.34 is necessary to indemnify them. The right to interest is “purely statutory and in derogation of the common law” (Matter of Transit Cas. Co., 223 AD2d 488; see, Matter of Gordon v Board of Educ., 52 Misc 2d 175, 176). Contrary to the court’s holding, CPLR 5001 does not authorize interest in this proceeding to punish respondents for disobeying the lawful mandate of the court. In the absence of proof that interest was part of petitioners’ actual loss or injury (see, Judiciary Law § 773; State of New York v Unique Ideas, 44 NY2d 345, 349; see also, Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 NY2d 233, 239-240) or an express authorization for an award of interest in Judiciary Law § 773, petitioners are not entitled to preverdict interest (cf., Matter of Patrick v Perales, 172 AD2d 279, lv denied 78 NY2d 862; Matter of Gross v Perales, 133 AD2d 37, affd 72 NY2d 231, rearg denied 72 NY2d 1042). We modify the order and judgment by vacating that award. (Appeal from Order and Judgment of Supreme Court, Monroe County, Polito, J. — Contempt.) Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.