Opinion
109, 151635/13.
04-28-2016
Pinhas ZAHAVI, etc., Plaintiff–Respondent–Appellant, v. JS BARKATS PLLC, et al., Defendants–Appellants–Respondents.
JSBarkats, PLLC, New York (Marc J. Block of counsel), for appellants-respondents. D' Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for respondent-appellant.
JSBarkats, PLLC, New York (Marc J. Block of counsel), for appellants-respondents.
D' Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for respondent-appellant.
Opinion Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered April 9, 2015, awarding plaintiff interest at the statutory rate of 9% on a previously awarded principal sum, to the extent it brings up for review an order, same court and Justice, entered December 5, 2014, which, inter alia, granted plaintiff's motion to resettle a prior order, unanimously affirmed, and appeal from said judgment, to the extent it brings up for review an order, same court and Justice, entered April 16, 2014, which, inter alia, denied plaintiff's motion for partial summary judgment on his claim for an additional sum, unanimously dismissed, with costs to be paid by defendants.
Supreme Court acted within its authority in resettling an order to award interest owed to plaintiff (see e.g. Williams v. City of New York, 111 A.D.3d 420, 974 N.Y.S.2d 383 [1st Dept.2013] ; Matter of New York State Urban Dev. Corp. [Alphonse Hotel Corp.], 293 A.D.2d 354, 741 N.Y.S.2d 29 [1st Dept.2002] ). The court properly determined that the period of interest should commence from the date on which plaintiff established that defendants lacked any good faith basis for retaining the principal sum in escrow and therefore were no longer entitled to the protection of Judiciary Law § 497(5), and could not be considered stakeholders within the meaning of CPLR 1006(f). It is of no consequence that defendants received no benefit from the money because it was held in their IOLA account (see Toledo v. Iglesia Ni Christo, 18 N.Y.3d 363, 369, 962 N.E.2d 773 [2012] ).
Plaintiff's appeal from the judgment is dismissed since it concerns the claim he voluntarily discontinued pursuant to CPLR 3217(b).
We have considered all other claims and find them to be unavailing.
The Decision and Order of this Court entered herein on February 4, 2016 is hereby recalled and vacated (see M–764, 2016 WL 1691795 & 898 decided simultaneously herewith).
SAXE, J.P., MOSKOWITZ, RICHTER, FEINMAN, JJ., concur.