New York State Court of Claims

New York State Court of Claims

KELLMAN v. THE STATE OF NEW YORK, #2007-033-568, Claim No. 106578


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Law Offices of Thomas F. LiottiBy: Thomas F. Liotti, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises due to the alleged damages to Barbara Kellman and Howard Kellman (hereinafter “claimants”). On November 1, 2006, a trial was held on the question of damages.[1]

On May 30, 2002, claimants brought an order to show cause before Justice F. Dana Winslow seeking an order of attachment against real property owned by Ki Ping Chan. Previously, a jury trial, on the question of liability, was held between June 12, 2001 and June 20, 2001, wherein the claimants sued Agnes and Ki Ping Chan for libel, slander and defamation. On June 20, 2001, the jury returned a verdict in favor of claimants. Thereafter, on July 15, 2002, damages in the amount of $1,697,237.40 were found.
On May 31, 2002, Justice Winslow signed the order to show cause and ordered a return date of June 4, 2002. On June 6, 2002, Justice Winslow signed an order of attachment. On June 11, 2002, Ki Ping Chan transferred the residence to Yong Hui Xue (see claimants’ Exhibit 6). The sale price of the residence was $630,000.00 (see claimants’ Exhibit 5). The order of attachment remained in Justice Winslow’s chambers until July 9, 2002. The order of attachment would have allowed claimants to prevent the sale of Chan’s residence. As the Court found in its prior decision, defendant is liable for the transfer of the residence.

At trial, the parties stipulated to submit the appraisals prepared by each of the party’s expert (claimants’ Exhibit 11 and defendant’s Exhibit A). The parties stipulated that if the experts were to testify they would testify consistent with their opinions set forth in their respective appraisals. Claimants’ expert found a value of the transferred residence to be $625,000.00 at the time it was transferred. Defendant’s expert found the value at the time of transfer to be $610,000.00.

In the instant matter, the experts provide a range of values for the subject property which does not include the sale price of the property. However, within the record is ample proof of the value of the property. The contract for the sale of the subject property was $630,000.00 and the property was transferred at that price (claimants’ Exhibits 5 and 6).

Thus, the Court finds that the value of the subject property, on the date it was transferred was $630,000.00.

The Court must now turn its attention to the question of interest on this award. Claimants argue that they are entitled to prejudgment interest from June 20, 2001 at the rate of 9%. The defendant argues that interest should accrue from the time a notice of entry is filed and then served upon the State. Defendant argues that given the volatile nature of the bond market during the time when the claim accrued, the Court should order an interest rate of less than 9%. Defendant makes no attempt to support its argument other than the conclusory statement that 9% is too high. The Court finds 9% to be the appropriate rate of interest.

In support of their argument for prejudgment interest, claimants rely on CPLR §§ 5001, 5002 and 5003. CPLR 5001(a) states that prejudgment interest shall be
. . . recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.

In examining claimants’ underlying case, the situations presented in CPLR 5001 are not present. Claimants’ suit in supreme court was based upon defamation and not a breach of contract. The suit in Supreme Court did not seek to possess property, nor did the judgment interfere with claimants’ title or possession of property. The fact that claimants could have filed a lien against the property to prevent its sale did not give them title or possession. Nor is claimants’ action one of equity. Thus, CPLR 5001 is not applicable and claimants are not entitled to prejudgment interest. Claimants are entitled to interest on their award in this matter from the date of this Court’s finding of liability to the date of judgment, and thereafter from the date of judgment until payment (see CPLR 5002, 5003 and Court of Claims Act §20[7]). In this matter, the finding of liability is measured from the date of the Court’s decision in favor of claimants on the summary judgment motion (M-69173).

Accordingly, the Court awards claimants the sum of $630,000.00 together with interest from the date of the finding of liability as per the date of the decision in favor of claimants (March 23, 2005) until the date of judgment and thereafter until it is paid. In addition, pursuant to Court of Claims Act §11-a, the Court awards claimants their filing fee of $50.00.

Let judgment be entered accordingly.

March 30, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].The issue of liability was previously decided in favor of claimants by a summary judgment motion (M-69173).