Order, Supreme Court, New York County (Louis B. York, J.), entered April 16, 2008, which, in an action to recover on a policy of property insurance, upon defendant insurer's motion for restitution of $1,596,639.14 of the approximate $18.4 million it paid to plaintiff insured in satisfaction of a judgment that was partially vacated by this Court on a prior appeal (43 AD3d 23 ), plus the prejudgment interest it paid on the $1,596,639.14, inter alia, granted defendant's motion to the extent of awarding it $1,596,639.14, with interest at the statutory rate from May 13, 2005, i.e., the date defendant paid plaintiff the $18.4 million, unanimously modified, on the law, to award defendant in addition the prejudgment interest it paid on the $1,596,639.14, and otherwise affirmed, with costs in favor of defendant, and the matter remanded to Supreme Court for a calculation of such prejudgment interest and the entry of a judgment in favor of defendant accordingly.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Nardelli, Buckley, Abdus-Salaam, JJ.
Restitution was properly awarded in view of this Court's prior order that plaintiff was not entitled to recover for items worth some $1.6 million that were, as a matter of law, outside the scope of the policy (see Polipo v Sanders, 245 AD2d 2 , lv dismissed 92 NY2d 845 , and it being highly unlikely that any amount to be awarded plaintiff on the retrial ordered by this Court will be more than the amount awarded plaintiff on the first trial. However, Supreme Court's order, without explanation, failed to direct plaintiff's return of the portion of the prejudgment interest it received attributable to the $1.6 million, and we modify accordingly. Further, in order to avoid confusion as to the enforceability of the restitution being directed (see Marlee, Inc. v Bittar, 257 NY 240, 243 ), the Clerk is directed to enter judgment in defendant's favor once Supreme Court calculates the amounts of such prejudgment interest, costs and disbursements.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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