Plaintiff's decedent and William Socolov were each 50% shareholders in the closely held corporate defendant. This action was initially brought by the decedent in his individual and derivative capacities, after it was discovered that attorney Albert Socolov had made unauthorized disbursements from the corporate account.
Plaintiff, the substituted representative of the decedent's estate, concedes that the judgment awarded is for the benefit of the corporation. Plaintiff is entitled to his legal costs, but the damages and interest should go directly to the injured corporation ( Glenn v. Hoteltron Sys., 74 N.Y.2d 386). We modify accordingly ( Wolf v. Rand, 258 A.D.2d 401) to direct the award to the corporation not as a dismissed party defendant, but rather in its capacity as beneficiary of the derivative action as originally captioned when brought by the decedent.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly considered by the jury, and there is no basis for disturbing its determinations ( Cohen v. Hallmark Cards, 45 N.Y.2d 493). However, pre-verdict interest is inconsistent with an award of treble damages under Judiciary Law § 487 ( see Delulio v. 320-57 Corp., 99 A.D.2d 253).
As conceded by plaintiff's attorney at oral argument, defendant William Socolov is entitled to costs (CPLR 8101).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.