Wolfert v. Buttolph

Appellate Division of the Supreme Court of New York

Wolfert v. Buttolph

206 A.D.2d 359, 614 N.Y.S.2d 53, 1994 N.Y. App. Div. LEXIS 7134

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 5, 1994

StatusPublished

This text of 206 A.D.2d 359 (Wolfert v. Buttolph) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wolfert v. Buttolph, 206 A.D.2d 359, 614 N.Y.S.2d 53, 1994 N.Y. App. Div. LEXIS 7134 (N.Y. Ct. App. 1994).

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Opinion

In an action to recover amounts due under a promissory note, the defendants Allen Weinstein, Richard Bailey, and Joseph Weinstein appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaccaro, J.), dated October 15, 1992, as referred the plaintiff’s motion to vacate a satisfaction of judgment to a Judicial Hearing Officer to hear and determine.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion is denied.

Where, as here, the question of whether a satisfaction of judgment should be vacated involves issues wholly unrelated to the basis of the action upon which the judgment was entered and occurring outside of the original litigation, those issues are properly raised and determined in a plenary action upon appropriate pleadings (see, Matter of Village of Greenwood Lake v Mountain Lake Estates, 189 AD2d 987; Greenfield v Stern, 126 Misc 561). Thus the plaintiff’s motion to vacate the satisfaction of judgment, brought in the context of the original litigation, should have been denied.

We further note that under the circumstances, a plenary action based upon fraud would be time barred (see, CPLR 213 [8]; 203 [g]).

In light of our determination we reach no other issues. Bracken, J. P., Lawrence, Joy and Goldstein, JJ., concur.

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In an action to recover amounts due under a promissory note, the defendants Allen Weinstein, Richard Bailey, and Joseph Weinstein appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaccaro, J.), dated October 15, 1992, as referred the plaintiff’s motion to vacate a satisfaction of judgment to a Judicial Hearing Officer to hear and determine.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion is denied.

Where, as here, the question of whether a satisfaction of judgment should be vacated involves issues wholly unrelated to the basis of the action upon which the judgment was entered and occurring outside of the original litigation, those issues are properly raised and determined in a plenary action upon appropriate pleadings (see, Matter of Village of Greenwood Lake v Mountain Lake Estates, 189 AD2d 987; Greenfield v Stern, 126 Misc 561). Thus the plaintiff’s motion to vacate the satisfaction of judgment, brought in the context of the original litigation, should have been denied.

We further note that under the circumstances, a plenary action based upon fraud would be time barred (see, CPLR 213 [8]; 203 [g]).

In light of our determination we reach no other issues. Bracken, J. P., Lawrence, Joy and Goldstein, JJ., concur.

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Bluebook (online)

206 A.D.2d 359, 614 N.Y.S.2d 53, 1994 N.Y. App. Div. LEXIS 7134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfert-v-buttolph-nyappdiv-1994.

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