Opinion
May 8, 1995
Appeal from the Supreme Court, Kings County (Hurowitz, J., Goldberg, J.).
Ordered that the appeal from the order dated March 10, 1994, is dismissed since that order was superseded by the order dated November 21, 1994, made upon reargument, and it is further,
Ordered that the order dated November 21, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the resettled order dated January 24, 1995, is modified by deleting therefrom the provision denying the branch of the plaintiff's motion which was for attorney's fees and costs and substituting therefor a provision granting that branch of the plaintiff's motion in the amount of $6,011.39 to be paid equally by the two defendants; as so modified, the order is affirmed insofar as appealed from, and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In a prior action, the defendant Jennifer M. Lupo sought to recover monies that she claimed had been deposited by her father, the defendant William Lupo, for her benefit at the Republic National Bank of New York (hereinafter the bank). After that action was dismissed as time-barred (see, Lupo v Republic Natl. Bank, 215 A.D.2d 452 [decided herewith]), both of the defendants continued to demand payment from the bank. The bank then commenced this interpleader action and moved, inter alia, to be discharged from liability upon its payment into court of the amounts in the joint bank accounts in dispute (see, CPLR 1006). Contrary to the appellant William Lupo's contention, the Supreme Court properly granted that branch of the bank's motion.
However, the court's denial of the branch of the bank's motion which was for attorney's fees and costs was an improvident exercise of discretion (see, CPLR 1006 [f]). The bank, a neutral stakeholder with no interest in the disputed accounts, was forced to participate in a tortuous litigation between a father and his daughter. We, therefore, grant the branch of the bank's motion which was for attorney's fees and costs in the amount of $6,011.39, to be paid equally by the two defendants.
Since the prior action concerned a custodial account that was established by the defendant William Lupo pursuant to the Uniform Gifts to Minors Act (see, EPTL, art 7, part 4), the Supreme Court properly granted William Lupo partial summary judgment dismissing the complaint in this action with regard to that account on the ground of res judicata.
The parties' remaining contentions are without merit. Miller, J.P., Pizzuto, Joy and Krausman, JJ., concur.