Arefyev v Khmelnitskiy

[*1] Arefyev v Khmelnitskiy 2006 NY Slip Op 51340(U) [12 Misc 3d 139(A)] Decided on May 25, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-551 K C.

Aleksandr Arefyev, Respondent,

against

Konstantine Khmelnitskiy, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered November 13, 2003. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,025 and dismissed defendant's counterclaim.

Judgment affirmed without costs.

The present action is the second of two small claims actions that stemmed from a monetary dispute between the parties. In the first of these actions, Khmelnitskiy v Arefyev (Index No. SCK 7574/01), defendant herein, Konstantine Khmelnitskiy, obtained a default judgment against plaintiff herein, Aleksandr Arefyev, in the amount of $2,025, and subsequently obtained execution thereof. However, Arefyev successfully moved to vacate the default judgment and the action was subsequently dismissed (Arthur M. Schack, J., judgment entered January 14, 2003). Thereafter, Arefyev commenced the present action, seeking return of the moneys that Khmelnitskiy had obtained on the now-vacated judgment.

On appeal from the order which dismissed the action (Khmelnitskiy v Arefyev, No. 2003-841 K C, May 14, 2004), this court reversed and awarded Khmelnitskiy the principal sum of $1,350, based upon admissions made by the parties below at the trial. This court stated that "[i]n making this award, we find that the total amount to which plaintiff [Khmelnitskiy] is entitled is $1,350. This award recognizes that plaintiff is not entitled to retain the amount previously collected upon execution of the subsequently vacated default judgment."

During the pendency of the above-described appeal, the court below entered judgment in favor of plaintiff Arefyev in the present action on the ground that the prior judgment in favor of Khmelnitskiy had been vacated, and Khmelnitskiy was not now entitled to retain the moneys he [*2]had collected against it. The court dismissed Khmelnitskiy's counterclaim based upon the original monetary dispute on res judicata grounds. We affirm.

Although this court subsequently awarded $1,350 to Khmelnitskiy upon appeal in the first action (Khmelnitskiy v Arefyev, No. 2003-841 K C, supra), it was made clear at that time that the total amount to which he was entitled was $1,350, and specifically that he was not entitled to retain the amounts previously collected from Arefyev. As the ruling of the court below in the present action also effectuates this result, we affirm.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: May 25, 2006