On November 30, 2021, the First Department issued a decision in Reif v. Nagy, 2021 NY Slip Op. 06659, holding that a judgment on a claim for replevin can include pre-judgment interest, explaining:
Defendants correctly note that there was no sum awarded upon which interest could be calculated pursuant to that statute. However, the Court of Appeals has stated that a replevin plaintiff is entitled to recover both possession of his/her property and damages for its wrongful detention and that — in cases where the article was merchandise kept for sale which has not depreciated in value, interest on the value from the time of the wrongful taking would be a proper measure of damages. The rationale for awarding interest is that if the defendant had not taken the plaintiff’s property, the plaintiff could theoretically have sold it at any time and then he would have had its value and whatever he could have earned on that value.
The parties agree that the value of plaintiffs’ property at the time of the wrongful taking (November 13, 2015) was $2.5 million. Defendants admit that, through November 4, 2018, plaintiffs lacked possession of the artworks or were legally restrained from selling them. Hence, the appropriate period for calculating pre-decision interest is November 13, 2015 through November 4, 2018. According to defendants, 9% on $2.5 million during this period is $678,082.19.
Plaintiffs contend that interest should run through either July 12 or August 9, 2021 because defendants committed conversion through that date. This argument is unavailing. Plaintiffs claim defendants cast a cloud over title to the artworks. However, conversion is concerned with possession, not with title. Moreover, plaintiffs provide no evidentiary support for the contentions in their appellate brief that (1) defendants’ continuing claims of ownership are such a substantial interference with plaintiffs’ ownership of the artworks as to be a total deprivation of the economic value of the artworks and (2) plaintiffs cannot auction the artworks. It is fundamental to the law of damages that one complaining of injury has the burden of proving the extent of the harm suffered.
Plaintiffs’ claim that they should get CPLR 5002 interest on $2.5 million as well as on the amount of pre-decision interest is unavailing. The value of the artwork ($2.5 million) was not part of the total sum awarded.
(Internal quotations and citations omitted) (emphasis added)