L. SMIRLOCK REALTY CORP. v. Title Guarantee Co. , 63 N.Y.2d 955 ( 1984 )

63 N.Y.2d 955 (1984)

L. Smirlock Realty Corp., Respondent-Appellant,
v.
Title Guarantee Company, Appellant-Respondent.

Court of Appeals of the State of New York.

Argued October 10, 1984. Decided November 13, 1984.

Michael Permut, John J. Boyle and Samuel Kirschenbaum for appellant-respondent.

Jeffrey G. Stark for respondent-appellant.

Richard Gyory and Herbert B. Ruskin for New York State Land Title Association, Inc., amicus curiae.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, SIMONS and KAYE concur; Judge MEYER taking no part.

MEMORANDUM.

The order of the Appellate Division should be modified, with costs to plaintiff, to delete therefrom the words "the sum of $593,850, with interest from April 14, 1972" and to substitute therefor the words "the sum of $593,850, with interest from May 14, 1969", and, as so modified, affirmed.

As to the legal issues presented, we affirm, except as to the date from which interest should run on the sum of $593,850, for the reasons stated in the carefully considered and fully articulated opinion of Justice David T. Gibbons at the Appellate Division. Issues of fact with respect to which the determinations of Supreme Court were affirmed by the Appellate Division are beyond the reach of our review, there being evidence in the record for the support of such determinations. As to the issues of fact with respect to which the Appellate Division differed with Supreme Court, we conclude that the determinations of the Appellate Division more nearly comport with the weight of the evidence.

We do not agree, however, with the conclusion of the Appellate Division that interest on the sum of $593,850 (determined to be the difference in value of the property with access via St. George Place and Jeanette Avenue and its value without such access) should run from April 14, 1972. Defendant's liability for a defect in the title against which the policy insured accrued, and plaintiff's cause of action existed, at the time plaintiff acquired the defective title and the policy was issued, May 14, 1969. Its right to interest on the $593,850 accordingly ran from that date (CPLR 5001, subd [b]).

Order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed.