IN RE: Anshil GOLDBERGER (2008)

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the appeals are from (1) so much of an order of the Supreme Court, Kings County (Knipel, J.), dated February 28, 2007, and (2) so much of a judgment of the same court entered March 16, 2007, as, upon the order, failed to include prejudgment interest on the award.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment which includes an award of prejudgment interest, and the order dated February 28, 2007, is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the petitioner.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issue raised on the appeal from the order is brought up for review and has been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

 The petitioner was entitled to prejudgment interest from the date of the arbitration award (see Matter of Meehan v. Nassau Community Coll., 242 A.D.2d 155, 159–160, 675 N.Y.S.2d 354;  Matter of Aetna Cas. & Sur. Co. v. Mantovani, 240 A.D.2d 566, 569, 658 N.Y.S.2d 926;  Matter of Aetna Cas. & Sur. Co. v. Rosen, 233 A.D.2d 499, 500, 650 N.Y.S.2d 29;  Murphy v. Wack, 177 A.D.2d 382, 576 N.Y.S.2d 129).  CPLR 5002 provides that interest “shall be recovered upon the total sum awarded ․ from the date the verdict was rendered or the report or decision was made to the date of entry of final judgment” (see Love v. State of New York, 78 N.Y.2d 540, 545, 577 N.Y.S.2d 359, 583 N.E.2d 1296;  Van Nostrand v. Froehlich, 44 A.D.3d 54, 844 N.Y.S.2d 293).  “Interest under CPLR 5002 is a matter of right and is not dependent upon the court's discretion or a specific demand for it in the complaint” (Matter of Kavares [Motor Veh. Acc. Indem. Corp.], 29 A.D.2d 68, 70–71, 285 N.Y.S.2d 983, affd. 28 N.Y.2d 939, 323 N.Y.S.2d 431, 271 N.E.2d 915;  see e.g. Matter of Lyons v. National Union Fire Ins. Co., 208 A.D.2d 540, 540–541, 617 N.Y.S.2d 37).  Contrary to the respondents' contentions, an exception to this statutory mandate is not warranted by the circumstances of this case (see Love v. State of New York, 78 N.Y.2d 540, 545, 577 N.Y.S.2d 359, 583 N.E.2d 1296;  Van Nostrand v. Froehlich, 44 A.D.3d 54, 844 N.Y.S.2d 293;  cf. Manufacturer's & Traders Trust Co. v. Reliance Ins. Co., 8 N.Y.3d 583, 838 N.Y.S.2d 806, 870 N.E.2d 124).