Takayama v. Schaefer, 240 A.D.2d 21 (2nd Dep't 1998) involved a situation much like the instant one, which had been adjudicated in Civil Court. The Appellate Division resolved it by, essentially in accord with Judge Sullivan's Herwick reasoning, determining that the escrowee attorney was in fact subject to a personal money judgment, albeit one limited (absent some independent breach of the attorney's fiduciary obligations as escrowee) to the amount of the sum held in escrow. The attorney for the seller in a real estate transaction received, as escrow agent, a $ 12,000 down payment from the purchaser. The attorney deposited the down payment into his IOLA account. After the underlying deal fell apart, and while the parties to the transaction litigated ownership of the funds, the attorney kept the money in his IOLA account for 4 1/2 years. The purchaser's attorney never made a demand for the transfer of the funds to an interest-bearing account. After trial in New York City Civil Court, the purchaser was awarded judgment requiring the attorney to pay the purchaser not only the $ 12,000, but, in addition, over $ 5,000 in interest. On appeal, the Appellate Term affirmed, observing that by failing to pay the sum into court, the attorney "subjected himself to liability for interest and costs." In a 3 to 2 decision, the Appellate Division, however, reversed, holding (240 A.D.2d at 26): "Judiciary Law Sec. 497 (5) absolves an attorney from liability for the 'good faith' placement of escrow monies in an IOLA account and ... the appellant's good faith was never questioned or even raised at any point in the proceedings. This is not to say that there are no circumstances under which an attorney may be held responsible or that the safe-harbor provision of Judiciary Law 497 (5) has no limits. In the case before us, however, ... we find no basis to impose personal liability on the appellant." Justice Luciano, with Justice Copertino joining him, dissented. Justice Luciano observed ([240 A.D.2d] at 28) that it was likely that "if the funds held in escrow had belonged to the attorney, he would have taken whatever actions were necessary to maintain their productivity," and that the attorney therefore "should have maintained the productivity of the funds for the benefit of the buyer." Justice Luciano opined that while under the literal text of the statute the attorney could not be held liable for the "initial placement" of the funds in an IOLA account, a breach of fiduciary duty from whose consequences the Judiciary Law did not insulate the attorney occurred when the attorney "permitted the funds to remain in the short-term account when it became evident to him that there was a conflict between the buyer and seller which would not be resolved without resort to litigation of an indeterminate duration ..." (240 A.D.2d at 29 ). The safe harbor provision of subdivision (5) was relied upon to exonerate an escrowee who held a $12,000 deposit in an IOLA account during four years of litigation, although the two dissenting Judges concluded that a breach of fiduciary duty occurred when the attorney failed to deposit the monies in an interest bearing account when it became evident that the funds would have to remain in escrow pending the outcome of the litigation. However, even the majority concluded that there are circumstances where subdivision (5) would not provide protection to an attorney employing an IOLA account. Subdivision (5) states that no attorney "shall be held liable in damages nor held to answer for a charge of professional misconduct because of a deposit of moneys to an IOLA account pursuant to a judgment in good faith that such monies were qualified funds."