Opinion
2013-05-2
Noel M. WIEDERHORN, MD, etc., Petitioner–Respondent, v. J. Ezra MERKIN, et al., Respondents–Appellants.
Dechert LLP, New York (Neil A. Steiner of counsel), for appellants. Brickman Leonard & Bamberger, P.C., New York (David E. Bamberger of counsel), for respondent.
Dechert LLP, New York (Neil A. Steiner of counsel), for appellants. Brickman Leonard & Bamberger, P.C., New York (David E. Bamberger of counsel), for respondent.
TOM, J.P., FRIEDMAN, SWEENY, FEINMAN, JJ.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered October 4, 2012, which ordered respondents to supplement their undertaking by $255,957.40, unanimously affirmed, without costs, and respondents are directed to pay petitioner an additional $44,570.99, representing interest that accrued on the judgment between October 2, 2012 and January 4, 2013.
On February 9, 2011, a judgment of $1,758,744.01 was entered in petitioner's favor as against respondent Merkin. On February 18, 2011, respondents paid $1,763,080.64 (representing the amount of the judgment, plus interest through February 18) into court to stay the judgment pending appeal pursuant to CPLR 5519(a)(2).
In 2012, petitioner moved to have Merkin increase his undertaking to account for the additional interest that had accrued on the judgment since February 18, 2011. On October 4, 2012, the court ordered respondents to supplement their undertaking in the amount of $255,957.40, which represented the interest that had accrued from February 19, 2011 through October 1, 2012. Petitioner was finally paid his judgment (essentially, the $1,763,080.64 that respondents had paid into court on February 18, 2011) on January 4, 2013.
Contrary to respondents' claim, their payment of $1,763,080.64 into court on February 18, 2011 to stay the judgment pending appeal did not stop interest from accruing ( see Purpura v. Purpura, 261 A.D.2d 595, 597, 691 N.Y.S.2d 68 [2d Dept. 1999], lv. dismissed in part, denied in part94 N.Y.2d 850, 703 N.Y.S.2d 71, 724 N.E.2d 767 [1999];see also Matter of Matra Bldg. Corp. v. Kucker, 19 A.D.3d 496, 796 N.Y.S.2d 709 [2d Dept. 2005] ). This is so even though respondents no longer had the use of the money after paying it into court ( see J. D'Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 117–118, 957 N.Y.S.2d 275, 980 N.E.2d 940 [2012];Steinback v. Diepenbrock, 5 App.Div. 208, 211, 39 N.Y.S. 137 [1st Dept. 1896] ).
Petitioner is entitled to simple interest until the date he was paid ( see e.g. Colgate v. Broadwall Mgt. Corp., 51 A.D.3d 437, 438, 857 N.Y.S.2d 539 [1st Dept. 2008]; Purpura, 261 A.D.2d at 598, 691 N.Y.S.2d 68). That date is January4, 2013. Petitioner contends, and respondents do not dispute, that the amount of simple interest on the judgment from February 19, 2011 through January 4, 2013 is $300,528.39. The $255,957.40 supplemental undertaking that respondents paid into court on October 18, 2012 covers part of that amount. The balance is $44,570.99.
Petitioner is not entitled to interest on $300,528.39 (i.e. interest on interest) from January 5, 2013; he has pointed to neither an express agreement nor statutory authority for such compound interest ( see Rourke v. Thomas Assoc., 216 A.D.2d 717, 718, 627 N.Y.S.2d 831 [3d Dept. 1995], appeal dismissed86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 [1995] ).
In the exercise of our discretion, we decline petitioner's request to order respondents to pay him $5,000 in attorneys' fees for bringing a frivolous appeal.