Edilio Flores et al., Appellants, v. Citizens International Bank, Respondent

Edilio Flores et al., Appellants, v Citizens International Bank, Respondent. [640 NYS2d 746] [MAJORITY] Since the jury was instructed to consider interest in its deliberations as to damages and the verdict was in excess of the loan principal, the trial court properly found plaintiffs were not entitled to prejudgment interest (see, Men’s World Outlet v Estate of Steinberg, 101 AD2d 854; 5 Weinstein-KornMiller, NY Civ Prac ¶ 5001.14). We agree with the trial court that, in view of the evidence presented, the jury could reasonably find that fraud had not been proven by a preponderance of the evidence. This Court will not consider defendant’s arguments for affirmative relief since defendant’s appeal was dismissed for lack of prosecution, which dismissal is the functional equivalent of an affirmance (see, Matter of Ellsman, 77 NY2d 926). Concur— Sullivan, J. P., Wallach, Kupferman and Tom, JJ.