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Losquadro v. Losquadro

226 A.D.2d 593 Court N.Y. App. Div. Decision date 1996-04-22 English

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p. 593
Dominic J. Losquadro, Appellant, v Dominic E. Losquadro, Respondent.
[641 NYS2d 570]

In an action for an accounting following the dissolution of a partnership, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated February 17, 1995, which granted the defendant’s motion to vacate a judgment entered after a nonjury trial and directed the plaintiff to file a proper judgment.

Ordered that the order is affirmed, with costs.

In this accounting proceeding, which is equitable in nature, the trial court, after a nonjury trial, issued an order which awarded the plaintiff the sum of $37,646 but which did not award interest. The plaintiff neither appealed from this order nor moved to reargue on the question of interest. Subsequently, the plaintiff entered a judgment which included the sum of $26,779.38 as prejudgment interest. The defendant moved to vacate the judgment, and the trial court granted the motion.

Since the judgment entered by the plaintiff contained a pro

p. 594
vision which had not been awarded by the trial court and to which he was not otherwise automatically entitled (see, CPLR 5001 [a]), the trial court properly vacated the judgment and directed the plaintiff to submit a new one without the offending provision (see, Hanlon v Thonsen, 146 AD2d 743 ; see also, Gerenstein v Gerenstein, 188 AD2d 868 ; Green v Morris, 156 AD2d 331 ). Moreover, based upon the record before us, the trial court’s refusal to award interest was not an improvident exercise of discretion (cf., Aurnou v Greenspan, 161 AD2d 438 ). Balletta, J. P., Thompson, Santucci and Florio, JJ., concur.

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