| Cely v O'Brien & Kreitzberg |
| 2007 NY Slip Op 08835 [45 AD3d 368] |
| November 15, 2007 |
| Appellate Division, First Department |
| Oscar Cely, Appellant, v O'Brien & Kreitzberg et al.,Defendants, and Regional Scaffolding and Hoisting Co., Inc., Respondent. (And a Third-PartyAction.) |
—[*1] Garbarini & Scher, P.C., New York City (William D. Buckley of counsel), forrespondent.
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 andadjudged that the settlement of plaintiff's claim against defendant Regional Scaffolding andHoisting 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 Appeal from order, same court and Justice, entered January 5, 2006, unanimouslydismissed, without costs, as superseded by the appeal from the July 11, 2006 order and judgment.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 theground that he failed to timely provide Regional with the Hold Harmless Stipulation and W-9Form. Although neither the open court settlement agreement nor CPLR 5003-a requires thesubmission of those documents as a condition of payment of the settlement amount, defendant'srequest for them is supported by statute and case law (see Internal Revenue Code [26USC] § 3406 [a] [1] [A] [corporation required to deduct and withhold tax if payee failed tofurnish name, address and taxpayer identification number, information requested on W-9Form]; In re Emergency Beacon Corp., 52 BR 828, 830 n 3 [SD NY 1985]; see alsoLiss v Brigham Park [*2]Coop. Apts. Sec. No. 3, 264 AD2d717 [1999] [general release and stipulation of settlement defective in not providing for release ofplaintiff's Medicare lien]). Concur—Lippman, P.J., Andrias, Nardelli, Gonzalez andKavanagh, JJ.