SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1445 

CA 12-00088 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ. 

 

VILLAGE OF ILION, ET AL., PLAINTIFFS, 

AND VILLAGE OF HERKIMER, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

COUNTY OF HERKIMER, INDIVIDUALLY AND AS 

ADMINISTRATOR OF HERKIMER COUNTY SELF-INSURANCE 

PLAN, DEFENDANT-RESPONDENT, 

ET AL., DEFENDANTS. 

(APPEAL NO. 3.)

 

LONGSTREET & BERRY, LLP, SYRACUSE (MARTHA L. BERRY OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

 

HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (ALBERT J. MILLUS, JR., OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Oneida County

(Anthony J. Paris, J.), entered September 21, 2011. The judgment,

inter alia, awarded money damages to defendant County of Herkimer,

individually and as administrator of Herkimer County Self-Insurance

Plan, on its amended and supplemental counterclaims. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: The Village of Herkimer (plaintiff) is a former

member of the Herkimer County Self-Insurance Plan (Plan), which was

created in 1956 pursuant to article 5 of the Workers’ Compensation

Law. In 2005, plaintiffs commenced this action against, inter alia,

defendant County of Herkimer, individually and as Plan administrator

(County), after a dispute developed between the County and its

municipalities with respect to the Plan’s future. As relevant to this

appeal, the County moved for summary judgment on its amended and

supplemental counterclaims. Supreme Court granted the motion and

directed an inquest on damages, and we affirmed (Village of Ilion v

County of Herkimer, 63 AD3d 1549). At the ensuing inquest, a jury

awarded the County $1,617,528 in damages against plaintiff, to which

the court later added, inter alia, $833,580.87 in prejudgment

interest.

The instant appeals are from various papers entered in connection

with the damages inquest, including the final judgment rendered upon

the jury verdict. Because plaintiff’s right to appeal from the
-2- 1445 

CA 12-00088 

interlocutory orders challenged in appeal Nos. 1 and 2 was terminated

by the entry of the judgment challenged in appeal No. 3 (see Matter of

Aho, 39 NY2d 241, 248), we dismiss the appeals from the orders in

appeal Nos. 1 and 2 (see Colonial Sur. Co. v Lakeview Advisors, LLC,

93 AD3d 1253, 1254). We necessarily considered the parties’

contentions with respect to those interlocutory orders in connection

with appeal No. 3, however (see id.; see also CPLR 5501 [a] [1]), and

we now affirm the judgment thereby challenged.

The court did not err in declining to instruct the jury to

discount any damage award that it rendered; “discounting is performed

by the trial court and juries are specifically instructed . . . to

award a full amount of future damages, without a reduction to present

value” (Toledo v Iglesia Ni Christo, 18 NY3d 363, 368; see CPLR 4111

[e]). In any event, contrary to plaintiff’s contention, the County’s

award of damages did not actually constitute compensation for future

losses; by its verdict, the jury found that plaintiff owed the County

$1,617,528 as of December 31, 2005, a sum that it thereafter

wrongfully withheld. Inasmuch as there is no basis for discounting

the award of damages, the court’s award of prejudgment interest on

those damages is neither a windfall nor a penalty (cf. Milbrandt v

Green Refractories Co., 79 NY2d 26, 31; see generally Toledo, 18 NY3d

at 368-369). Rather, it is fair compensation for the period in which

plaintiff held money that rightfully belonged to the County (see Love

v State of New York, 78 NY2d 540, 544). Moreover, the court did not

abuse its discretion in setting the rate of the prejudgment interest

awarded at 9%, the maximum permitted by law (see General Municipal Law

§ 3-a [1]). That rate is “presumptively fair and reasonable,

notwithstanding any contemporaneous grant of judicial discretion to

impose a lesser amount” (Rodriguez v New York City Hous. Auth., 91

NY2d 76, 81), and plaintiff failed to rebut the presumption here (see

Denio v State of New York, 7 NY3d 159, 168-169). We have considered

plaintiff’s remaining contentions and conclude that they lack merit.

Entered: February 1, 2013 Frances E. Cafarell

Clerk of the Court