RETIREMENT ACCOUNTS INC v. Edward F. Myers, etc., et al., defendants-respondents, et al., defendants. (2008)

In an action to foreclose a mortgage, the defendant Pacst Realty, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), dated January 5, 2007, as, in effect, upon reargument, adhered to a prior determination in an order dated May 1, 2006, granting the plaintiffs' motion and the cross motion of the defendants-respondents to confirm a referee's report determining that the total sum due on a mortgage, as of March 17, 2005, was $660,400, and confirming the referee's report.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Although the Supreme Court stated that the appellant's motion for leave to reargue was denied, the court, in fact, considered the merits of the underlying motion and cross motion and adhered to its original determination.  Thus, contrary to the contention of the plaintiffs and the defendants-respondents, the order dated January 5, 2007, is appealable (see Noble v. Noble, 43 A.D.3d 893, 841 N.Y.S.2d 634;  Caccioppoli v. Long Is. Jewish Med. Ctr., 271 A.D.2d 565, 566, 706 N.Y.S.2d 145;  Sorg v. Zoning Bd. of Appeals, 248 A.D.2d 622, 670 N.Y.S.2d 511).

 Generally, once a judgment is entered, the interest rate set forth in CPLR 5004 applies (see Marine Mgt., Inc. v. Seco Mgt., Inc., 176 A.D.2d 252, 253, 574 N.Y.S.2d 207, affd. 80 N.Y.2d 886, 587 N.Y.S.2d 900, 600 N.E.2d 627).  However, where there is a clear, unambiguous, and unequivocal expression to pay an interest rate higher than the statutory interest rate until the judgment is satisfied, the contractual interest rate is the proper rate to be applied (see C & M Air Sys. v. Custom Land Dev. Group II, 262 A.D.2d 440, 692 N.Y.S.2d 146;  Banque Nationale De Paris v. 1567 Broadway Ownership Assocs., 248 A.D.2d 154, 155, 669 N.Y.S.2d 568;  ERHAL Holding Corp. v. Rusin, 229 A.D.2d 417, 419, 645 N.Y.S.2d 93;  Marine Mgt., Inc. v. Seco Mgt., Inc., 176 A.D.2d at 254, 574 N.Y.S.2d 207, affd. 80 N.Y.2d 886, 587 N.Y.S.2d 900, 600 N.E.2d 627).  Here, as the Supreme Court correctly concluded, the mortgage note and agreement clearly, unambiguously, and unequivocally expressed that, in the event of default, the agreed-upon rate of interest, 24%, was to govern over the statutory rate of interest from that time through the entry of judgment up until actual satisfaction.

Contrary to the appellant's contention, there is no evidence that the plaintiffs engaged in inequitable or dilatory conduct that would preclude them from their entitlement to interest earned on the unpaid judgment (see Bankers Trust Co. of Cal., N.A. v. Brunson, 40 A.D.3d 672, 836 N.Y.S.2d 632;  Matter of Matra Bldg. v. Kucker, 19 A.D.3d 496, 796 N.Y.S.2d 709;  Greenberg v. Greenberg, 269 A.D.2d 354, 355, 702 N.Y.S.2d 632;  cf. ERHAL Holding Corp. v. Rusin, 252 A.D.2d 473, 474, 675 N.Y.S.2d 138).