Infinity Health Prods. Ltd. v New York Cent. Mut. Fire Ins. Co.

[*1] Infinity Health Prods. Ltd. v New York Cent. Mut. Fire Ins. Co. 2010 NY Slip Op 51181(U) [28 Misc 3d 127(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-518 RI C.

Infinity Health Products Ltd. as Assignee of Joy McMillian, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered November 12, 2008. The order (1) granted the branch of defendant's motion seeking leave to renew defendant's prior motion and, upon renewal, directed plaintiff to return monies paid to it by defendant; (2) directed plaintiff to pay half the cost of defendant's expert witness at trial; and (3) granted the branch of defendant's motion seeking, in effect, to vacate the portion of the prior order which, sua sponte, restored the matter to the trial calendar, and directed that plaintiff move for such relief.

ORDERED that the appeal from so much of the order as directed plaintiff to pay half the cost of defendant's expert witness at trial is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, after a judgment in favor of plaintiff was satisfied by defendant, the underlying order in favor of plaintiff, upon which the judgment was entered, and implicitly the judgment, were vacated and the action was placed on the trial calendar. Although the parties dispute the issue, court documents indicate that the action was subsequently dismissed due to plaintiff's nonappearance. Thereafter, defendant moved, in effect, for restitution of the amounts paid to plaintiff, pursuant to CPLR 5015 (d). The Civil Court granted the motion and, sua sponte, restored the matter to the trial calendar. Subsequently, defendant moved for, among other things, leave to renew the prior motion, and, in effect, to vacate the portion of the prior order which, sua sponte, restored the motion to the trial calendar. By order entered November 12, 2008, the Civil Court again ordered restitution, directed plaintiff to pay half the cost of defendant's expert witness at trial, and vacated the portion of the prior order which, sua sponte, restored the matter to the trial calendar, with a direction that plaintiff move to restore. The instant appeal by plaintiff ensued. The appeal from so much of the order as directed plaintiff to pay half the cost of defendant's expert witness at trial, [*2]which relief was not sought in defendant's motion papers, is dismissed on the ground that said portion of the order did not determine a motion made upon notice and is not appealable as of right (CCA 1702 [a] [2]; see CPLR 2211).

The remainder of the order is affirmed. Where a judgment that has already been paid in full is set aside, the party that paid the judgment may seek repayment pursuant to CPLR 5015 (d), which authorizes a court, upon motion, to direct restitution. In our view, the Civil Court providently exercised its discretion in directing such restitution. Moreover, upon a review of the record, we find that, under the circumstances presented, the Civil Court properly directed plaintiff to move to restore the matter to the trial calendar.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010