Ehrlich v. Island Plus Agency, Inc.

224 A.D.2d 691, 638 N.Y.S.2d 714, 1996 N.Y. App. Div. LEXIS 1930

Opinion

—In a proceeding pursuant to CPLR 5225 (b) to recover a $75,000 down payment pursuant to two real estate contracts of sale, the petitioners Island Plus Agency, Inc., and Elliot Leffler appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated January 3,1995, which denied their application.

Ordered that the order is affirmed, with costs.

In a prior decision and order, this Court, inter alia, reversed so much of a judgment of the Supreme Court, Kings County, dated November 16, 1992, as was in favor of the respondents and against the appellants in the principal sum of $75,000 and remitted the matter for a trial (see, Ehrlich v Island Plus Agency, 205 AD2d 579). During the pendency of that appeal, however, the appellants did not obtain a stay pursuant to CPLR 5519, and the $75,000 was delivered to the respondents from escrow. The appellants subsequently moved, pursuant to CPLR 5225 (b), for an order requiring the respondents to return the $75,000 claiming that this Court’s order in the prior appeal returned the parties to their original status. As the respondents contend, however, á proceeding pursuant to CPLR 5225 (b) is an inappropriate procedure for obtaining a return of the money since there is no judgment in favor of the appellants for $75,000 (see, CPLR 5225 [b]). Therefore, the Supreme Court properly denied the appellants’ application. Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.