

Matter of Swezey v Merrill Lynch, Pierce, Fenner & Smith Inc. (2020 NY Slip Op 02175)





Matter of Swezey v Merrill Lynch, Pierce, Fenner & Smith Inc.


2020 NY Slip Op 02175


Decided on April 2, 2020


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 April 2, 2020

Renwick, J.P., Richter, Mazzarelli, Singh, JJ.


11340 155600/13

[*1]In re Osquagama F. Swezey, et al., Petitioners-Respondents,
vMerrill Lynch, Pierce, Fenner & Smith Incorporated, Respondent, New York City Department of Finance, Respondent-Appellant. Philippine National Bank, et al., Intervenors.


James E. Johnson, Corporation Counsel, New York (Edan Burkett of counsel), for appellant.
Anderson Kill P.C., New York (Jeffrey E. Glen of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 12, 2018, which, based on the findings of a memorandum decision dated October 25, 2018 granting petitioners' motion, ordered respondent Department of Finance (DOF) to transfer to the New York State Comptroller the sum of $625,975.87, to be added to the funds that had been previously transferred on April 4, 2017, unanimously reversed, on the law, without costs, the order vacated, and the motion denied.
DOF properly withheld the administrative fee of two percent under CPLR 8010(1) upon its payment of the court-deposited funds to the State Comptroller pursuant to Abandoned Property Law (§ 602. The court erred in concluding that the payment to the Comptroller was not a "payment out of court."
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 2, 2020
CLERK


