MANUFACTURER TRADERS TRUST COMPANY v. Fru-Con/Fluor Daniel Joint Venture, Defendant-Respondent. (2006)

 Defendants O'Brien & Gere Technical Services, Inc. (OBG) and defendants Cives Corporation and Cives Steel Company, Mid-South Division (collectively, Cives) contend that Supreme Court erred in granting the motion of defendant Fru-Con/Fluor Daniel Joint Venture for judgment against them, jointly and severally, in the amount of $949,506.83, representing the amount of interest allegedly due under CPLR 5001(a), plus costs and disbursements.   We reject that contention.  CPLR 5001(a) provides in relevant part that, “in an action of an equitable nature, [an award of] interest ․ shall be in the court's discretion.”   We determined in a prior appeal that OBG breached the terms of the escrow agreement at issue (Manufacturers & Traders Trust Co. v. Reliance Ins. Co., 303 A.D.2d 1002, 757 N.Y.S.2d 404), and we conclude herein that, because this interpleader action was equitable in nature (see West End Homes v. Soldinger, 12 Misc.2d 342, 344, 172 N.Y.S.2d 1012;  see also Grace v. Dry Dock Sav. Bank, 150 N.Y.S.2d 729, 732, mod. on other grounds 3 A.D.2d 556, 162 N.Y.S.2d 381, affd. 4 N.Y.2d 862, 173 N.Y.S.2d 825, 150 N.E.2d 248;  Amoco Transport Co. v. Dietze, Inc., 582 F.Supp. 804, 807 n. 3), it was within the court's discretion to award interest.

 The remaining contentions of OBG and Cives are raised for the first time on appeal and thus are not properly before us (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: