97 A.D.2d 958 | N.Y. App. Div. | 1983
Order unanimously affirmed, with costs. Memorandum: Defendants, County of Monroe and its director of finance. (County), appeal from an order which granted plaintiff’s motion for partial summary judgment declaring that the acquisition of certain certificates of deposit pursuant to a court order did not constitute the making of an investment within the meaning of CPLR 8010 (subd 2). On August 13, 1980 the County acquired the sum of $626,826.88, representing surplus moneys paid into court from a foreclosure action in which plaintiff was a named defendant. These funds were then deposited by the County in a day-to-day savings account at the Marine Midland Bank earning interest at the rate of 5Vfe%. Thereafter, on February 27, 1981, following a motion made by one of the surplus money claimants pursuant to CPLR 2601 (subd [d]), the court directed the county treasurer to “invest all surplus money presently held by him ***in a sixty day certificate of deposit issued by Central Trust Co.” No fee was taken by the County at the time the certificates of deposit were purchased. Prior to paying any portion of the fund out of court, however, the County, pursuant to CPLR 8010 (subds 1, 2), deducted as its fee the sum of $17,556.32, representing 21/2% of the fund balance. Plaintiff paid this fee under protest and thereafter commenced the instant action and this motion for partial summary judgment challenging the County’s right pursuant to CPLR 8010 (subd 2) to a fee of one half of 1% for money allegedly “invested”. CPLR 8010 provides, inter alia, that the treasurer of a county is entitled to a fee for rendering specified services: (1)
