Delio v Ferrara
Annotate this CaseDecided on October 17, 2008
Supreme Court, Nassau County
Linda Delio, Plaintiff,
against
Carl Ferrara, Defendants.
025623/1998
TO:Linda Delio
Plaintiff Pro Se
805 The Hideout
Lake Ariel, PA 18436
Carl Ferrara
Defendant Pro Se
12 Smull Place
Port Washington, NY 11050
County of Nassau
Sheriff's Department
240 Old Country Road
Mineola, NY 11501
Daniel R. Palmieri, J.
In this action, plaintiff obtained a judgment against defendant entered in the office of
the Clerk of Nassau County New York on June 11, 1999 in the amount of $17,246.00. After the date
of entry in a criminal action against defendant, the plaintiff was named the beneficiary of an order of
restitution in the amount of $14,325.00. Defendant made payments of restitution while on probation
which, according to the probation department, were disbursed to plaintiff in a total amount of
$10,605.81, but payments ceased upon defendant's discharge from probation. According to plaintiff's
submission, which is not refuted, the balance due on this judgment as of October 14, 2008, is
$11,314.18.
Penal Law §60.27.6, provides:
Any payment made as restitution pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment.
Thus, the receipt of restitution ordered by a court as part of its sentence in a criminal case is not a bar to a civil action for damages arising out of the same transaction or events, so long as the defendant receives credit for payments made pursuant to the restitution order. This is especially so where as here the civil judgment was obtained and entered before the order of restitution in the criminal action. Kurlansky v. Professional Care, Inc., 158 AD2d [*2]897 (3d Dept. 1990); Farber v. Stockton, 131 Misc 2d 470 (Sup. Ct. App. Term 2d & 11th Districts 1986); Farber v. Stockton, 128 Misc 2d 560 (Civ. Ct. Kings Cty. 1985); See also A v. B, Jr. and B, Sr., 121 Misc 2d 750 (Sup. Ct. Rensselaer Cty. 1983).
Here, not only was the judgment entered before the restitution order, it could well have been entered after and as long as there is no duplication of payment, plaintiff is permitted to enforce her judgment to the extent due thereon, namely $11,314.18, as of October 14, 2008.
Based on the above, the motion by defendant to vacate the judgment in this aciton is denied. The stay of execution contained in the Order to Show Cause is vacated and plaintiff and the Sheriff of Nassau County are authorized and permitted to employ all lawful means for payment of the judgment.
This shall constitute the Decision and Order of this Court.
E N T E R
DATED: October 17, 2008
_____________________________
HON. DANIEL PALMIERI
Acting Supreme Court Justice
TO:Linda Delio
Plaintiff Pro Se
805 The Hideout
Lake Ariel, PA 18436
Carl Ferrara
Defendant Pro Se
12 Smull Place
Port Washington, NY 11050
County of Nassau
Sheriff's Department
240 Old Country Road
Mineola, NY 11501
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