Williams v City of New York

Williams v City of New York 2013 NY Slip Op 07268 Decided on November 7, 2013 Appellate Division, First Department 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 November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ.
10968 23644/05

[*1]Burnett Williams, Plaintiff-Appellant,

v

City of New York, et al., Defendants-Respondents.




Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel),
for
respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 22, 2012, which granted the motion of defendant New York City Transit Authority (NYCTA) to correct the rate of interest on the judgment from 9% to 3% pursuant to Public Authorities Law § 1212(6), unanimously affirmed, without costs.

It is uncontested that the rate of interest against NYCTA may be no more than 3% (Public Authorities Law § 1212[6]). As defendants were found jointly and severally liable for 100% of the judgment, the proper interest rate was 3% (see Bello v New York City Tr. Auth., 50 AD3d 511 [1st Dept 2008]; Klos v New York City Tr. Auth., 240 AD2d 635, 638 [2d Dept 1997], lv dismissed 91 NY2d 846 [1997]). Moreover, defendants assert that NYCTA is bound to indemnify the City pursuant to the lease relating to the subject property. Plaintiff does not deny this assertion, and thus, NYCTA is the real party in interest, and the court properly recalculated the interest rate at 3% (see Ebert v New York City Health & Hosps. Corp., 82 NY2d 863 [1993]). Finally, as the rate of interest was not argued by the parties or decided by the court, and the rate is mandated by statute, this ministerial error may be corrected even after the underlying substantive appellate process is complete (see Kiker v Nassau County, 85 NY2d 879 [1995]).

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

ENTERED: NOVEMBER 7, 2013

CLERK