Reich v. Manhattan Boiler & Equipment Corp.

240 A.D.2d 262, 659 N.Y.S.2d 737, 1997 N.Y. App. Div. LEXIS 6562

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1997
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Sherry Klein Heitler, J.), entered November 15, 1996, in favor of plaintiff and against defendant in an action to recover a portion of a third-party judgment by an assignee thereof, unanimously affirmed, without costs.

The transaction in issue, made after trial and apportionment of liability, was correctly held to be sanctioned by Feldman v New York City Health & Hosps. Corp. (56 NY2d 1011, revg 84 AD2d 166, for reasons set forth in 107 Misc 2d 145) as "an agreement in which a stranger to the litigation loaned the main defendant the amount necessary to pay the plaintiff so that it could then seek contribution from the third-party defendant” (Gonzales v Armac Indus., 81 NY2d 1, 7). Defendant’s insurance carrier is not entitled to a complete lien on the proceeds collected by plaintiff or plaintiff’s assignor, defendant’s third-party judgment creditor in the underlying action for 25% of the judgment (see, Palma v Ben Cal Assocs., 161 AD2d 567, lv dismissed 77 NY2d 834, 78 NY2d 1092 [construing Workers’ Compensation Law § 29]). The court properly calculated the statutory interest. Concur—Murphy, P. J., Wallach, Rubin, Tom and Andrias, JJ.