MADONNA v. MADONNA (1999)

In a matrimonial action in which the parties were previously divorced, the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Costello, J.), dated February 20, 1998, which, after a hearing on the economic issues of the marriage, inter alia, awarded each party 50% of the $95,000 increase in the value of the marital residence, award the defendant 50% of the plaintiff's pension earned during the marriage, and awarded the defendant 9% interest per annum from June 30, 1993, on her share of the increase in value of the marital residence, based on the defendant's loss of use of the money due to the delay in the payment to her of that money.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by deleting therefrom the phrase “9% per annum” and by substituting therefore the phrase “4 1/2% per annum”;  as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

 It is well settled that the Supreme Court has broad discretion in accepting or rejecting all or part of any expert testimony (see, Matter of Adirondack Hydro Dev. Corp. (Warrensburg Bd. and Paper Corp.), 205 A.D.2d 925, 926, 613 N.Y.S.2d 459;  Hoyt v. Hoyt, 166 A.D.2d 800, 802, 563 N.Y.S.2d 161;  Oswald v. Oswald, 154 A.D.2d 817, 546 N.Y.S.2d 475).   The determination by the Supreme Court of the value of the marital residence in 1986 and 1993, which incorporated expert testimony, was supported by the record and therefore was not an improvident exercise of discretion.

 The Supreme Court had the authority to award interest in this matter and to set the rate at 9% per annum pursuant to CPLR 5004 (see, Selinger v. Selinger, 232 A.D.2d 471, 648 N.Y.S.2d 470).   However, the rate of 9% per annum is not mandatory (see, Rodriguez v. New York City Hous. Auth., 91 N.Y.2d 76, 666 N.Y.S.2d 1009, 689 N.E.2d 903), and, as a matter of discretion in the interest of justice, we lower the rate to 4 1/2% per annum.

 Contrary to the plaintiff's contention, he did not show that the defendant's conduct during this action was willful or contumacious.   Therefore, the drastic remedy of preclusion of evidence was not warranted (see, CPLR 3126;  Maillard v. Maillard, 243 A.D.2d 448, 663 N.Y.S.2d 67).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.