Tri-County Medical Group v. Fingerman

226 A.D.2d 155, 640 N.Y.S.2d 751, 1996 N.Y. App. Div. LEXIS 3465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1996
• Status: Published

Opinion

Order, Supreme Court, Queens County (Sol Dunkin, J.), entered April 27, 1994, which set down the issue of a credit for a hearing, and order of the same court and Justice entered January 5, 1995, which, after a hearing, granted plaintiffs a credit of $27,164.93 against an amended judgment in favor of defendant and against plaintiffs entered November 23,1993, to be applied to the last five of a series of promissory notes payable by plaintiffs, unanimously affirmed, without costs.

Although plaintiffs first raised their claim of an offset in a motion to vacate the money judgment of June 23, 1993, the IAS Court did not improvidently exercise its discretion in considering the issue (see, Smirlock Realty Corp. v Title Guar. Co., 97 AD2d 208, 236, mod on other grounds 63 NY2d 955). We note that the application of the doctrine of judicial estoppel was not required on these facts (cf., Matter of Town of Southampton [Bill], 220 AD2d 752) and that within the four corners of the agreement, there is no language limiting offsets (cf., Teitelbaum Holdings v Gold, 48 NY2d 51, 56). Concur— Sullivan, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.