In Theophilova v. Dentchev (111 AD3d 463 [1st Dept 2013]), the Court granted plaintiff post-report interest on the distributive award pertaining to enhanced earning capacity, pursuant to CPLR 5002, but denied her interest, retroactive to the date of the commencement of the action, on the remaining portion of the distributive award, on the grounds that claim was unpreserved. The Court held: "At the very minimum that decision demonstrates some measure of malpractice . . . and is fatal to the motion to dismiss." Plaintiff's argument ignores the appellate court's statement that "the trial court properly exercised its discretion in declining to award interest predating the Special Referee's report . . . on the enhanced earning capacity award." (111 AD3d at 463 .)