SEAR BROWN GROUP INC v. JAY BUILDERS INC (2000)

Supreme Court properly denied plaintiff's motion for a directed verdict (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145) and defendants' motion to set aside the verdict as against the weight of the evidence (see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).   We conclude, however, that the court erred in determining that prejudgment interest should accrue from August 1, 1987.   The record establishes that plaintiff's initial offsite mass grading plan was dated July 19, 1987.   That plan underwent several revisions, the last of which occurred in February 1989.   Based on the revised plan, the grading of phase 3 of the project of defendant Jay Builders, Inc. (Jay Builders) commenced in February or March 1989.   Because the damages of Jay Builders arose from the implementation of that final revised plan, i.e., it sustained additional earth moving costs and the value of the property was reduced, “the earliest ascertainable date” (CPLR 5001[b] ) of defendants' counterclaim was February 1, 1989.   Consequently, we modify the judgment by changing the prejudgment interest accrual date from August 1, 1987 to February 1, 1989.

We have reviewed the remaining contentions of the parties and conclude that they are without merit.

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: