Polipo v. Sanders

Appellate Division of the Supreme Court of New York

Polipo v. Sanders

245 A.D.2d 2, 666 N.Y.S.2d 406, 1997 N.Y. App. Div. LEXIS 12004

Appellate Division of the Supreme Court of the State of New York·Decided December 2, 1997·Published·Cited by 1 cases

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 16, 1996, which directed plaintiff to return $577,805.25, plus interest, that had been paid to him in partial satisfaction of a judgment that was later vacated, unanimously affirmed, without costs.

The record is clear that defendants’ primary insurance carrier paid plaintiff $577,805.25 in partial satisfaction of a judgment in plaintiffs favor so that plaintiff would not execute on defendants’ property pending appeal. Plaintiff’s contention that this sum was paid in settlement of any part of the action is without foundation in the record. When the judgment was later reversed and the complaint dismissed (227 AD2d 256, lv denied 88 NY2d 812), plaintiff was properly directed to make restitution (CPLR 5015 [d]; see, Mormilo v Allied Stevedores Corp., 8 AD2d 217). Concur—Murphy, P. J., Rosenberger, Ellerin, Rubin and Tom, JJ. [See, 170 Misc 2d 833.]

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—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 16, 1996, which directed plaintiff to return $577,805.25, plus interest, that had been paid to him in partial satisfaction of a judgment that was later vacated, unanimously affirmed, without costs.

The record is clear that defendants’ primary insurance carrier paid plaintiff $577,805.25 in partial satisfaction of a judgment in plaintiffs favor so that plaintiff would not execute on defendants’ property pending appeal. Plaintiff’s contention that this sum was paid in settlement of any part of the action is without foundation in the record. When the judgment was later reversed and the complaint dismissed (227 AD2d 256, lv denied 88 NY2d 812), plaintiff was properly directed to make restitution (CPLR 5015 [d]; see, Mormilo v Allied Stevedores Corp., 8 AD2d 217). Concur—Murphy, P. J., Rosenberger, Ellerin, Rubin and Tom, JJ. [See, 170 Misc 2d 833.]

Polipo v. Sanders, 245 A.D.2d 2, 666 N.Y.S.2d 406, 1997 N.Y. App. Div. LEXIS 12004 (N.Y. Ct. App. 1997).

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