Lepach, LLC v. City of Peekskill

—In an action to recover damages for overpayment of development fees, (1) the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Barone, J.), entered August 24, 2001, as granted that branch of the defendant’s cross motion which was for summary judgment on its counterclaim for interest in the sum of $6,090.58, and the defendant cross-appeals from so much of the same order as, upon granting the plaintiffs motion for summary judgment, determined that the plaintiff is entitled to judgment in the principal sum of $7,500, plus inter [286] est and costs, and that the defendant is entitled to interest in the sum of only $6,090.58, and (2) the plaintiff appeals from so much of an order of the same court, entered November 28, 2001, as, upon reargument, adhered to so much of the prior determination as granted that branch of the defendant’s cross motion which was for summary judgment on its counterclaim for interest in the sum of $6,090.58. Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [c], [e]); and it is further, Ordered that the plaintiff’s appeal from the order entered August 24, 2001, is dismissed, as that order was superseded by the order entered November 28, 2001, made upon reargument; and it is further, Ordered that the order entered November 28, 2001, is reversed insofar as appealed from, on the law, that branch of the defendant’s motion which was for summary judgment on its counterclaim for interest in the sum of $6,090.58, is denied, and so much of the order entered August 24, 2001, as granted that branch of the defendant’s motion is vacated; and it is further, Ordered that one bill of costs is awarded to the plaintiff. On the facts presented, the defendant failed to establish entitlement to an award of interest (see New York State Thruway Auth. v Hurd, 25 NY2d 150; Matter of Levanis v New York City Employees’ Retirement Sys., 278 AD2d 327). Ritter, J.P., Friedmann, H. Miller and Cozier, JJ., concur.