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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Andrew P. MELONI, as Sheriff of Monroe County, and John D. Doyle, as County Executive of Monroe County, Petitioners-Respondents, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, and Honorable George E. Pataki, as Governor of State of New York, Respondents-Appellants.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, PIGOTT, JR., HURLBUTT and CALLAHAN, JJ. Julie M. Sheridan, Albany, for respondents-appellants. Charles S. Turner, Rochester, for petitioners-respondents.

In this civil contempt proceeding pursuant to Judiciary Law § 773, Supreme Court erred in awarding preverdict interest to petitioners.   The court awarded that interest as an element of actual loss or injury caused by the noncompliance of the Commissioner of the New York State Department of Correctional Services (respondent) with a 1987 court order directing him to receive inmates on a timely basis (see, Matter of Monroe County v. Cuomo, 132 A.D.2d 1003, 518 N.Y.S.2d 590, lv. denied 70 N.Y.2d 608, 521 N.Y.S.2d 225, 515 N.E.2d 910).

 The parties stipulated that the loss actually sustained by petitioners was $1,700,000, and there is no support in the record for the conclusion that an additional award of $464,455.34 is necessary to indemnify them.   The right to interest is “purely statutory and in derogation of the common law” (Matter of Transit Cas. Co., 223 A.D.2d 488, 636 N.Y.S.2d 791;  see, Matter of Gordon v. Board of Educ., 52 Misc.2d 175, 176, 274 N.Y.S.2d 543).   Contrary to the court's holding, CPLR 5001 does not authorize interest in this proceeding to punish respondents for disobeying the lawful mandate of the court.   In the absence of proof that interest was part of petitioners' actual loss or injury (see, Judiciary Law § 773;  State of New York v. Unique Ideas, 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 376 N.E.2d 1301;  see also, Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239-240, 519 N.Y.S.2d 539, 513 N.E.2d 706) or an express authorization for an award of interest in Judiciary Law § 773, petitioners are not entitled to preverdict interest (cf., Matter of Patrick v. Perales, 172 A.D.2d 279, 568 N.Y.S.2d 379, lv. denied 78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603;  Matter of Gross v. Perales, 133 A.D.2d 37, 518 N.Y.S.2d 624, affd. 72 N.Y.2d 231, 532 N.Y.S.2d 68, 527 N.E.2d 1205, rearg. denied 72 N.Y.2d 1042, 534 N.Y.S.2d 940, 531 N.E.2d 660).   We modify the order and judgment by vacating that award.

Order and judgment unanimously modified on the law and as modified affirmed without costs.


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