| Vick v Albert |
| 2008 NY Slip Op 03314 [50 AD3d 438] |
| April 15, 2008 |
| Appellate Division, First Department |
| Jonathan E. Vick et al., Respondents, v Richard Albert etal., Appellants, et al., Defendants. |
—[*1] Steven B. Sarshik, New York, for respondents.
Appeal from order, Supreme Court, New York County (Karla Moskowitz, J.), entered April4, 2007, which denied the motion by defendants Albert and the Albert Greenberg & Vick andGodwin Realty partnerships to deposit funds into court as a satisfaction piece in order to stayenforcement of a judgment pending appeal, unanimously dismissed as moot, without costs.
After plaintiffs obtained a judgment against appellants, both sides appealed, during thependency of which appellants moved to deposit funds into court pursuant to CPLR 5021 (a) (3),in partial satisfaction and as an undertaking for the balance of the judgment, in order to stayenforcement. Appellants argued that a deposit made under CPLR 5021 (a) (3), as opposed to anundertaking under CPLR 2501 (2) or 5519 (a) (2), tolls the running of postjudgment interest andavoids the requirement to pay the 2% administrative fee under CPLR 8010 (1). Plaintiffssuccessfully opposed the motion, and pending the instant appeal from that order, appellants filedan undertaking pursuant to CPLR 5519 (a) (2), which does not require a court order to stayenforcement of the judgment.
On January 17, 2008, this Court affirmed the judgment in plaintiffs' favor (47 AD3d 482[2008]), effectively rendering the instant appeal moot. Were we to reach the merits, we wouldfind that the motion court properly exercised its discretion in denying appellants' effort to deposit[*2]funds pursuant to CPLR 5021 (a) (3), since they failed tomake an unconditional tender of the judgment prior to making the motion (Meilak v AtlanticCement Co., 30 AD2d 254 [1968]). Concur—Lippman, P.J., Tom, Williams andAcosta, JJ.