LIBERATORE v. OLIVIERI DEVELOPMENT (2003)

 Victor Liberatore, Sr., and Victor Liberatore, Jr. (plaintiffs) appeal from an order of County Court entered July 19, 2002 that granted the motion of Olivieri Development, Darryl Olivieri and Glen Olivieri (defendants) seeking, inter alia, to modify the judgment (denominated order) entered June 26, 2000 by tolling the accrual of postjudgment interest on the amount of the judgment until the later of May 3, 2002 or the resolution of this appeal.   We agree with plaintiffs that the court erred in tolling postjudgment interest, which had been granted in the judgment entered June 26, 2000.   Postjudgment interest is awarded as a penalty for delayed payment on a judgment (see Matter of Rochester Carting Co. v. Levitt, 36 N.Y.2d 264, 268, 367 N.Y.S.2d 242, 326 N.E.2d 808), and it will continue to accrue absent an unconditional tender of payment (see Michaels v. United States Tennis Assn., 295 A.D.2d 222, 744 N.Y.S.2d 375;  Meiselman v. Allstate Ins. Co., 197 A.D.2d 561, 561-562, 602 N.Y.S.2d 659), some judicial or extraordinary impediment to tender of payment (see Moscow Fire Ins. Co. of Moscow v. Heckscher & Gottlieb, 260 App.Div. 646, 650, 23 N.Y.S.2d 424, affd. 285 N.Y. 674, 34 N.E.2d 377), dilatory action on the part of the judgment creditor (see ERHAL Holding Corp. v. Rusin, 252 A.D.2d 473, 474, 675 N.Y.S.2d 138;  Juracka v. Ferrara, 120 A.D.2d 822, 823-824, 501 N.Y.S.2d 936, lv. denied 68 N.Y.2d 608, 506 N.Y.S.2d 1032, 498 N.E.2d 434), or some action by the judgment creditor that would make it “inequitable or oppressive that he get interest on his judgment” (Feldman v. Brodsky, 12 A.D.2d 347, 351, 211 N.Y.S.2d 56, affd. 11 N.Y.2d 692, 225 N.Y.S.2d 762, 180 N.E.2d 915).   The hearsay affidavits of defendants' attorney did not establish that any of the above grounds for tolling interest apply to this case (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Contrary to defendants' contention, the fact that plaintiffs appealed the judgment entered June 26, 2000 (Liberatore v. Olivieri Dev., 294 A.D.2d 894, 741 N.Y.S.2d 371) and requested and received several extensions to perfect that appeal is not conduct warranting the tolling of postjudgment interest (cf.  Feldman, 12 A.D.2d at 351, 211 N.Y.S.2d 56;  see generally Pollock v. Collipp, 138 A.D.2d 584, 526 N.Y.S.2d 166).   Therefore, we modify the order by deleting the first three ordering paragraphs thereof and denying defendants' motion insofar as it seeks the tolling of postjudgment interest.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by deleting the first three ordering paragraphs thereof and denying the motion of defendants Olivieri Development, Darryl Olivieri and Glen Olivieri insofar as it seeks the tolling of postjudgment interest and as modified the order is affirmed without costs.

MEMORANDUM: