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Noel M. Wiederhorn, Md, Etc., Petitioner-Respondent v. J. Ezra Merkin

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 2, 2013

NOEL M. WIEDERHORN, MD, ETC., PETITIONER-RESPONDENT,
v.
J. EZRA MERKIN, ET AL., RESPONDENTS-APPELLANTS.

Wiederhorn v Merkin

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 2, 2013 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 AD2d 595, 597 [2d Dept 1999], lv dismissed in part, denied in part 94 NY2d 850 [1999]; see also Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [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 NY3d 113, 117-118 [2012]; Steinback v Diepenbrock, 5 App Div 208, 211 [1st Dept 1896]).

Petitioner is entitled to simple interest until the date he was paid (see e.g. Colgate v Broadwall Mgt. Corp., 51 AD3d 437, 438 [1st Dept 2008]; Purpura, 261 AD2d at 598). That date is January 4, 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 AD2d 717, 718 [3d Dept 1995], appeal dismissed 86 NY2d 837 [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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 2, 2013

CLERK

20130502

© 1992-2013 VersusLaw Inc.



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