Kupferman, J. (dissenting in part and concurring in part). In this medical malpractice action, in which negligence was conceded, a judgment was obtained in the principal amount of $7,000,000 for the injured plaintiff, who had suffered profound *109brain damage due to oxygen deprivation during the course of an operation, and $1,500,000 in favor of his wife on her derivative claim.
Incidentally, the jury award was $24,500,000 and $3,000,000, respectively, which was reduced to $7,000,000 and $1,500,000 pursuant to stipulation.
At issue is the question of interest, judgment having been entered and interest added at a rate of 9% pursuant to CPLR 5004 on March 28, 1988.
The defendant, New York City Health and Hospitals Corporation (HHC), appealed and this court affirmed the judgment and underlying orders, without opinion (150 AD2d 995). The Court of Appeals denied leave to appeal (74 NY2d 615).
When the matter became "final”, counsel for defendant HHC attempted to compute the interest for the period between March of 1988 and the final resolution of the appellate process in November of 1989. It was then discovered, for the first time, that the County Clerk had erroneously computed prejudgment interest at 9% instead of the statutory rate of 3% covering the New York City Health and Hospitals Corporation, as prescribed by section 7401 (5) of McKinney’s Unconsolidated Laws of NY (New York City Health and Hospitals Corporation Act § 20 [5] [L 1969, ch 1016, § 1, as amended]). Of course, the amount involved is substantial. Prejudgment interest at 9% is approximately $670,000, while at 3% it is some $220,000, for a difference of approximately $450,000. Postjudgment, the difference is approximately $1,300,000. As to the latter, a judgment has not yet been entered.
The 9% rate was established by a 1982 amendment to General Municipal Law § 3-a as the highest rate allowable against a municipal corporation; whereas, the 3% rate in title 18, chapter 5 of the Unconsolidated Laws predates it and applies specifically to HHC.
HHC contends that correction of mistakes is permitted pursuant to CPLR 2001 and 5015 (a). The plaintiff postulates that inasmuch as the defendant-appellant’s notice of appeal was from "each and every part” of the judgment, that the matter has been adjudicated and is no longer open to correction. The IAS court accepted the latter contention, indicating that HHC only sought review of the applicable interest rate after completion of the appellate process. (147 Mise 2d 636, 640.)
However, since the rate of interest was not specified in the *110judgment and there were no counterorders submitted with different interest rates, it cannot realistically be stated that HHC "waived” its right to contest a substantial interest overpayment. The clerical error is excusable in the interest of justice. (See, Fehlhaber Corp. v State of New York, 64 Misc 2d 167, 175-177, affd on other grounds 40 AD2d 881.)
I believe there is a distinction between prejudgment and postjudgment interest. The prejudgment interest was part of the judgment which was affirmed and, accordingly, should not be disturbed. The postjudgment interest has not yet been computed and we are free to apply the correct rate of 3% and I would, therefore, so modify to direct the Bronx County Clerk to enter judgment at that rate.
Carro, Asch and Kassal, JJ., concur with Murphy, P. J.; Kupferman, J., dissents in part and concurs in part in a separate opinion.
Order, Supreme Court, Bronx County, entered on or about July 9, 1990, affirmed, without costs.