Kesco, Inc. v. 201 LLC (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S SECOND MOTION TO REARGUE

In its second motion to reargue, the defendant claims that its expert, Kevin Malone, testified six times that the entire dryvit system had to be replaced.   Upon review of the testimony in this case, the court had substantial questions as to the credibility of Malone and, accordingly, the court did not give full credit to his testimony in the court's reply to the defendant's first motion to reargue.

The defendant also argues that the award of interest to the plaintiff should be based upon a figure determined after trial and not on the balance of $77,500.00 of the note.   The defendant argues that the award of $35,000.00 to the defendant on the counterclaim should be deducted from the $77,500.00, leaving a balance of $42,500.00 upon which interest should be calculated.

The court believes that the defendant's claim is well taken and that the defendant should not pay interest on the $35,000.00 counterclaim and that the balance of the note should be reduced by $35,000.00 to $42,500.00.   See J.P. Morgan Chase Bank, N.A. v. State Rock Property, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09–5030750–S (February 7, 2001, Woods, J.).

The plaintiff, in its objection to defendant's second motion to reargue, indicates that the stipulation agreement clearly states, “[i]f payment is not made by January 1, 2013, and remains unpaid for ten (10) days provided in the Note, defendant agrees to pay interest at twelve (12% ) percent per annum from January 1, 2010.”   Although the stipulation so states, the note itself provides:

Upon default in the payment of this Note or delinquent taxes, or should any default in the Mortgage or Note secured thereby remain in default for more than Ten (10) days, then Maker agrees to pay interest on the unpaid balance of this Note at Twelve (12%) percent per annum.

The provisions of the note control and since default did not occur until April 7, 2010, interest at the rate of 12% per annum does not apply until after April 7, 2010.

Accordingly, the court recalculates interest as follows.

The court determines that, prior to default, from April 7, 2010, to April 6, 2013, interest at the rate of 6% per annum on the balance of $42,500.00 is $7,650.00 and that, after default, from April 7, 2013, to November 6, 2014, interest at the rate of 12% per annum on the balance of $42,500.00 is $7,650.00.   Total interest is $15,300.00.   Total principal and interest is $57,800.00.   Interest will accrue on the mortgage at the rate of 12% per annum from November 7, 2014.

Seymour L. Hendel, J.T.R.

Hendel, Seymour L., J.T.R.