Rae v. Rosenberg

• Decision Date: 07 September 1971
• Citation: 67 Misc.2d 881,324 N.Y.S.2d 898
• Parties: Joseph RAE v. Louis L. ROSENBERG.
• Court: New York Supreme Court

Page 898

324 N.Y.S.2d 898

67 Misc.2d 881

Joseph RAE v. Louis L. ROSENBERG.

Supreme Court, Special Term, Kings County, Part I.

Sept. 7, 1971.

Hauser, Rosenbaum & Rothbard, Brooklyn, for plaintiff.

Wingate & Cullen, Brooklyn, for defendant.

MEMORANDUM

IRWIN BROWNSTEIN, Justice.

Defendant moves, pursuant to CPLR 3212, for a summary judgment dismissing plaintiff's action for restitution of moneys allegedly paid to defendant to satisfy a judgment of foreclosure upon the grounds that plaintiff's action has no merit and that the issues are barred by res judicata.

Plaintiff's complaint alleges, in substance, that in 1964 defendant had recovered a judgment of foreclosure on a bond and mortgage executed by plaintiff in favor of defendant and that, following the entry of judgment, 'there was paid to the defendant with sums of this plaintiff' $130,000, to which plaintiff claims he is entitled to restitution because of the reversal of the judgment by the Appellate Division.

Plaintiff's affidavit in opposition to this motion makes reference to the mortgage foreclosure action instituted by defendant against this plaintiff, this plaintiff's papers and proof submitted on his motion to restore that case to the calendar and the issues considered by the Appellate Division and the Court of Appeals in that case. Plaintiff then contends that though a satisfaction of the mortgage had been executed by defendant, nothing in the 'earlier litigation' nor in the conduct of either of the parties in relation to said mortgage debt is determinative of whether the payment was voluntarily made in satisfaction of the mortgage (its validity was disputed) or in satisfaction of a judgment of foreclosure 'to * * * stay an auction sale.' Plaintiff asserts that the payment to defendant was an involuntary payment on a judgment that was thereafter declared void and therefore this court should direct restitution. Plaintiff, however, does not annex a satisfaction of the judgment on which payment is claimed to have been made, nor does plaintiff 'lay bare and reveal his proofs' as to the circumstances surrounding the payment and the execution and recording of the satisfaction of mortgage.

On a motion for summary judgment more is required than disputation, denials and assertions that triable issues exist (Steingart Assoc. v. Sandler, 28 A.D.2d 801, 803, 280 N.Y.S.2d 1012, 1015; see also, Holdridge v. Town of Burlington, 32 A.D.2d 581, 299 N.Y.S.2d 340). Particularly is that true where the file records referred to by plaintiff contain facts reflecting on the merits of plaintiff's opposition (Tausig & Son v. Providence Washin. Ins. Co., 28 A.D.2d 279, 284 N.Y.S.2d 985, affd. 21 N.Y.2d 1022, 291 N.Y.S.2d 5, 238 N.E.2d 497).

Defendant, on this motion to dismiss plaintiff's complaint, contends that plaintiff's action has no merit and that in any event the issues therein have been determined. Defendant relies upon the denial in the Appellate Division of this plaintiff's cross-motion made July 6, 1970 for an order directing defendant to make restitution or deposit the money in court. It is apparent that defendant further considers the omission of the Court of Appeals to pass on that part of plaintiff's brief as sought a reversal of the Appellate Division denial of restitution as conclusively determining the issue of restitution.

Res judicata resulting from a decided motion is a bar to a new action where the issues in the new action were, in fact, determined by the prior motion. A party 'having elected to resort to its motion * * * is bound by the decision thereon,' (Drescher Rotberg Co. v. Landeker, 82 Misc. 441, 443, 143 N.Y.S. 1050, 1051; see also Williams v. Barkley, 165 N.Y. 48, 58 N.E. 765; Smith v. Zalinski, 94 N.Y. 519). However, a motion for restitution after modification or reversal of a judgment is addressed to the discretion of the court (CPLR 5015(b) and '(i)f the application be wholly denied, and nothing further appearing in the order, it may very possibly be that the denial would be regarded as an exercise of discretion vested in the court, whether to entertain such application or not, and the order of denial might not be appealable.' (Pittsfield Nat. Bank v. Bayne, 140 N.Y. 321, 328, 35 N.E. 630, 632).

The failure of the Appellate Court to order restitution may not be viewed as an adverse adjudication. 'Restitution upon motion is discretionary. One who seeks it may be left, in cases of hardship or of uncertainty, to the remedy by action,' (Golde Clothes Shop v. Loew's Buffalo Theatres, 236 N.Y. 465, 472, 141 N.E. 917, 919). Thus, where 'justice (is) best served by denying the motion * * * (it) in no wise precludes the defendants from asserting their rights in a new action.' (Stahl v. Norwich, 205 App.Div. 424, 425, 199 N.Y.S. 629). Neither the denial in the Appellate Division with 'nothing further appearing in the order' nor the failure of the Court of Appeals to pass upon the denial is res judicate of the issue of restitution.

There thus remains to be considered whether this action that only asks restitution of moneys allegedly paid on a reversed judgment has merit and whether the facts as presented and the file records in this court rule out any triable issues.

The order of reversal of the judgment of foreclosure entered by the Appellate Division on July 12, 1965 granted a new trial. But as stated in the opinion of Mr. Justice Schwartzwald (N.Y.L.J. 3/5/69, pg. 20, col. 2), 'plaintiff's mortgage which constituted the main action was paid and satisfied, it was (therefore) unnecessary or even possible for the plaintiff (this defendant) to proceed with that action.' Plaintiff on the other hand delayed prosecuting the action for '(a)pproximately three years and four months without any stir of activity' despite the Appellate Division's order of July 12, 1965 granting a new trial. This plaintiff's motion to restore that case to the trial calendar without any reasonable excuse for the delay on his part was denied and the denial was ultimately sustained on appeal. Plaintiff has thus been foreclosed from litigating any of the issues encompassed by the mortgage foreclosure action. Plaintiff now relies solely upon the equitable remedy of restitution for the recovery of the funds paid to defendant.

The remedy of a restitution action...