Wolfert v. Buttolph
| Decision Date | 05 July 1994 |
| Citation | 206 A.D.2d 359,614 N.Y.S.2d 53 |
| Parties | Jeffrey D. WOLFERT, Respondent, v. John BUTTOLPH, et al., Defendants, Allen Weinstein, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Herzfeld & Rubin, New York City (Herbert Rubin and David B. Hamm, of counsel), for appellants.
Jackson & Nash, New York City (William M. Pinzler, of counsel), for respondent.
Before BRACKEN, J.P., and LAWRENCE, JOY and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
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 Vil. of Greenwood Lake v. Mountain Lake Estates, 189 A.D.2d 987, 592 N.Y.S.2d 846; Greenfield v. Stern, 126 Misc. 561, 214 N.Y.S. 37). 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.
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...outside the original litigation and are wholly unrelated to the basis for the prior judgment in the original action. Wolfert v. Buttolph, 206 A.D.2d 359, 359 (2d Dep't 1994). Plaintiff's claim of fraud in the execution of the satisfaction, based on the Brody defendants' nonpayment pursuant ......
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Arnav Indus., Inc. v. M.H.B. Holdings, Inc., 13965/1990.
...outside the original litigation and are wholly unrelated to the basis for the prior judgment in the original action. Wolfert v. Buttolph, 206 A.D.2d 359, 359 (2d Dep't 1994). Plaintiff's claim of fraud in the execution of the satisfaction, based on the Brody defendants' nonpayment pursuant ......
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