Opinion
August 26, 1993
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
Plaintiff, Bankers Trust Company, first brought this interpleader action in March 1984 to resolve a dispute as to which of the defending parties was entitled to the $107,343.66 proceeds of a savings incentive plan, administered by the plaintiff, of which Mattie Lee Cusumano, who died on September 12, 1983, was a participant. Defendant Benjamin Cusumano, decedent's husband, claims the proceeds for himself alone, while the decedent's children claim the proceeds for themselves in equal shares. Benjamin Cusumano also seeks $2,320 in vacation pay allegedly owed to Mrs. Cusumano when she died.
Contrary to the Supreme Court's finding that Bankers Trust Company was not a mere stakeholder indifferent to the underlying litigation, Bankers, in fact, has no interest in the savings incentive plan funds which it seeks to deposit into court pursuant to CPLR 1006 (f) and should, therefore, not be barred from making such deposit.
As previously held by this Court ( 177 A.D.2d 450, 450-451), the plan expressly limits the amount to be distributed upon a participant's death to "'the amount to the credit of [decedent's] account as of the last day of the calendar month in which [decedent's] death occurs'", in this case September 30, 1983. Thus, any recovery by defendants is limited to the $107,343.66 valuation of decedent's account as of that date. However, although plaintiff was rebuffed in its first attempt to pay the money into court in 1984, and it appears that much of the subsequent delay is attributable to defendant Benjamin Cusumano, we deem it appropriate to require plaintiff to pay interest from the valuation date in accordance with the provisions of CPLR 1006 (f).
Finally, defendant Benjamin Cusumano's claim on behalf of his wife's estate for $2,320 in vacation pay should be severed from the main action, as it relates to and is predicated upon different factual and legal issues. The court's conclusion that such claim could not be remanded to Civil Court pursuant to CPLR 325 (d) by reason of administrative fiat due to budgetary cuts was, in itself, an insufficient basis for its refusal to sever that claim. Moreover, we are advised that such administrative order is no longer in effect.
Concur — Rosenberger, J.P., Kupferman, Ross and Kassal, JJ.