State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522274 

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THOMAS J. FORI,

Appellant,

v MEMORANDUM AND ORDER

LYNNE V. FORI,

Respondent.

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Calendar Date: October 12, 2016

Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

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David R. Sheridan, Delmar, for appellant.

Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.

Rutkey of counsel), for respondent.

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Peters, P.J.

Appeal from a judgment of the Supreme Court (Elliot III,

J.), entered June 4, 2015 in Greene County, which partially

denied plaintiff's motion to enforce the terms of a stipulation

of settlement.

Plaintiff (hereinafter the husband) and defendant

(hereinafter the wife) were married in 1965 and this divorce

action was commenced in 2009. In September 2013, the parties

entered into a separation agreement which, among other things,

required the wife to pay the husband a distributive award in the

amount of $216,393.36 by October 3, 2013. When she failed to do

so, the husband moved to enforce the separation agreement by

directing the wife to tender the distributive award together with

statutory interest from the date due. Supreme Court, among other

things, ordered the wife to pay the distributive award plus all
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interest actually earned on that sum, but declined to award

prejudgment interest pursuant to CPLR 5001. The husband appeals,

arguing solely that Supreme Court erred in declining to impose

prejudgment interest at the statutory rate.

We affirm. "There is no automatic entitlement to

prejudgment interest, under CPLR 5001, in matrimonial litigation"

(Rubin v Rubin, 1 AD3d 220, 221 [2003], lv denied 2 NY3d 706

[2004]; see Spathis v Spathis, 137 AD3d 654, 654 [2016];

Weinstein-Korn-Miller, NY Civ Prac ¶ 5001.01). Rather, the

decision to award prejudgment interest in a matrimonial action,

as well as the rate and date from which it shall be computed, are

matters within the sound discretion of the trial court (see

Pappas v Pappas, 140 AD3d 838, 840 [2016]; Wyser-Pratte v

Wyser-Pratte, 68 AD3d 624, 626 [2009]; Lipsky v Lipsky, 276 AD2d

753, 754 [2000]; Selinger v Selinger, 250 AD2d 752, 753 [1998],

lv dismissed and denied 92 NY2d 891 [1998]). Here, the record

reflects that, following the execution of the separation

agreement, issues arose regarding the accuracy of certain deeds

and transfer documents prepared by the husband relative to the

parcels of real property that were to be conveyed pursuant to the

agreement. Such issues had not been resolved at the time of the

husband's motion to enforce the agreement, the wife claiming that

certain inaccuracies still remained within the relevant

documents. Although the wife's obligation to tender the

distributive award by the date prescribed in the separation

agreement was not contingent upon the execution of the deeds

transferring the real property, the wife explained that she had

been advised by her attorney to withhold payment of the

distributive award – which she had placed in a separate interestbearing bank account – until the deeds were finalized and signed

so as to ensure a contemporaneous exchange (cf. Parnes v Parnes,

41 AD3d 934, 937 [2007]; Allen v Allen, 83 AD2d 708, 709 [1981]).

Under these circumstances, we cannot conclude that Supreme Court

improvidently exercised its discretion in choosing to award the

husband all interest actually earned on the distributive award

rather than prejudgment interest pursuant to CPLR 5001.

McCarthy, Lynch, Rose and Mulvey, JJ., concur.
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ORDERED that judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court