        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1445
CA 12-00088
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


VILLAGE OF ILION, ET AL., PLAINTIFFS,
AND VILLAGE OF HERKIMER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF HERKIMER, INDIVIDUALLY AND AS
ADMINISTRATOR OF HERKIMER COUNTY SELF-INSURANCE
PLAN, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.
(APPEAL NO. 3.)


LONGSTREET & BERRY, LLP, SYRACUSE (MARTHA L. BERRY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (ALBERT J. MILLUS, JR., OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Oneida County
(Anthony J. Paris, J.), entered September 21, 2011. The judgment,
inter alia, awarded money damages to defendant County of Herkimer,
individually and as administrator of Herkimer County Self-Insurance
Plan, on its amended and supplemental counterclaims.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: The Village of Herkimer (plaintiff) is a former
member of the Herkimer County Self-Insurance Plan (Plan), which was
created in 1956 pursuant to article 5 of the Workers’ Compensation
Law. In 2005, plaintiffs commenced this action against, inter alia,
defendant County of Herkimer, individually and as Plan administrator
(County), after a dispute developed between the County and its
municipalities with respect to the Plan’s future. As relevant to this
appeal, the County moved for summary judgment on its amended and
supplemental counterclaims. Supreme Court granted the motion and
directed an inquest on damages, and we affirmed (Village of Ilion v
County of Herkimer, 63 AD3d 1549). At the ensuing inquest, a jury
awarded the County $1,617,528 in damages against plaintiff, to which
the court later added, inter alia, $833,580.87 in prejudgment
interest.

     The instant appeals are from various papers entered in connection
with the damages inquest, including the final judgment rendered upon
the jury verdict. Because plaintiff’s right to appeal from the
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                                                         CA 12-00088

interlocutory orders challenged in appeal Nos. 1 and 2 was terminated
by the entry of the judgment challenged in appeal No. 3 (see Matter of
Aho, 39 NY2d 241, 248), we dismiss the appeals from the orders in
appeal Nos. 1 and 2 (see Colonial Sur. Co. v Lakeview Advisors, LLC,
93 AD3d 1253, 1254). We necessarily considered the parties’
contentions with respect to those interlocutory orders in connection
with appeal No. 3, however (see id.; see also CPLR 5501 [a] [1]), and
we now affirm the judgment thereby challenged.

     The court did not err in declining to instruct the jury to
discount any damage award that it rendered; “discounting is performed
by the trial court and juries are specifically instructed . . . to
award a full amount of future damages, without a reduction to present
value” (Toledo v Iglesia Ni Christo, 18 NY3d 363, 368; see CPLR 4111
[e]). In any event, contrary to plaintiff’s contention, the County’s
award of damages did not actually constitute compensation for future
losses; by its verdict, the jury found that plaintiff owed the County
$1,617,528 as of December 31, 2005, a sum that it thereafter
wrongfully withheld. Inasmuch as there is no basis for discounting
the award of damages, the court’s award of prejudgment interest on
those damages is neither a windfall nor a penalty (cf. Milbrandt v
Green Refractories Co., 79 NY2d 26, 31; see generally Toledo, 18 NY3d
at 368-369). Rather, it is fair compensation for the period in which
plaintiff held money that rightfully belonged to the County (see Love
v State of New York, 78 NY2d 540, 544). Moreover, the court did not
abuse its discretion in setting the rate of the prejudgment interest
awarded at 9%, the maximum permitted by law (see General Municipal Law
§ 3-a [1]). That rate is “presumptively fair and reasonable,
notwithstanding any contemporaneous grant of judicial discretion to
impose a lesser amount” (Rodriguez v New York City Hous. Auth., 91
NY2d 76, 81), and plaintiff failed to rebut the presumption here (see
Denio v State of New York, 7 NY3d 159, 168-169). We have considered
plaintiff’s remaining contentions and conclude that they lack merit.




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
