Cely v O'Brien & Kreitzberg

Cely v O'Brien & Kreitzberg 2007 NY Slip Op 08835 [45 AD3d 368] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Oscar Cely, Appellant,
v
O'Brien & Kreitzberg et al., Defendants, and Regional Scaffolding and Hoisting Co., Inc., Respondent. (And a Third-Party Action.)

—[*1] Robin Mary Heaney, Rockville Centre, for appellant.

Garbarini & Scher, P.C., New York City (William D. Buckley of counsel), for respondent.

Order and judgment (one paper), Supreme Court, Bronx County (Howard R. Silver, J.), entered July 11, 2006, which, to the extent appealed from as limited by the briefs, ordered and adjudged that the settlement of plaintiff's claim against defendant Regional Scaffolding and Hoisting Co., Inc. in the amount of $300,000 was without interest, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 5, 2006, unanimously dismissed, without costs, as superseded by the appeal from the July 11, 2006 order and judgment.

Plaintiff's request for interest pursuant to CPLR 5003-a (e) was properly denied on the ground that he failed to timely provide Regional with the Hold Harmless Stipulation and W-9 Form. Although neither the open court settlement agreement nor CPLR 5003-a requires the submission of those documents as a condition of payment of the settlement amount, defendant's request for them is supported by statute and case law (see Internal Revenue Code [26 USC] § 3406 [a] [1] [A] [corporation required to deduct and withhold tax if payee failed to furnish name, address and taxpayer identification number, information requested on W-9 Form]; In re Emergency Beacon Corp., 52 BR 828, 830 n 3 [SD NY 1985]; see also Liss v Brigham Park [*2]Coop. Apts. Sec. No. 3, 264 AD2d 717 [1999] [general release and stipulation of settlement defective in not providing for release of plaintiff's Medicare lien]). Concur—Lippman, P.J., Andrias, Nardelli, Gonzalez and Kavanagh, JJ.