Rehabxpress, PT, P.C., as Assignee of Ashley Wallace, Respondent,
Auto One Ins. Co., Appellant
Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for
Korsunskiy Legal Group, P.C. (Henry R. Guindi, Esq.), for
PRESENT:: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P.
from an order of the Civil Court of the City of New York,
Kings County (Robin Kelly Sheares, J.), entered April 23,
2015. The order denied defendant's motion for summary
judgment dismissing the complaint on the ground that the
amount due and owing had been satisfied or, in the
alternative, for the entry of a satisfaction of judgment.
that the order is affirmed, with $25 costs.
2012, plaintiff (the provider) commenced this action to
recover assigned first-party no-fault benefits for medical
services rendered to its assignor, who had allegedly been
injured in a motor vehicle accident that had occurred on
August 8, 2011. Defendant (the insurer) failed to timely
answer or appear in this action, and instead commenced a
declaratory judgment action in the Supreme Court, New York
County, against the provider, among others, seeking a
declaration that the defendants in that action were not
entitled to recover no-fault benefits arising out of the
August 8, 2011 motor vehicle accident.
the insurer defaulted in the instant action, the provider
moved for leave to enter a default judgment against the
insurer. The Civil Court granted the motion, and a default
judgment in the principal sum of $475 was entered against the
insurer on March 6, 2013.  In July 2013, the insurer moved to
vacate the default judgment and to compel the provider to
accept its late answer. The provider opposed the motion and
cross-moved for "summary judgment." The insurer did
not oppose the cross motion. By order entered July 16, 2014,
the Civil Court (Devin P. Cohen, J.) denied the insurer's
motion and granted, on default, the provider's cross
motion, stating that "the judgment stands."
28, 2014, the insurer moved for "summary judgment"
dismissing the complaint, contending that the amount due and
owing pursuant to the Civil Court judgment had been
satisfied, as an order and judgment in the Supreme Court
declaratory action had been entered in the insurer's
favor on July 14, 2014, declaring that the provider, among
others, was not entitled to recover no-fault benefits with
respect to the motor vehicle accident at issue. The order and
judgment further provided that the insurer recover from the
various named defendants therein, including the provider,
"costs and disbursements as taxed by the Clerk in the
sum of $1, 125." The insurer alleged, in its motion
papers, that the judgment in this action had been fully
satisfied by virtue of a "partial satisfaction, "
resulting from the judgment entered in the Supreme Court
declaratory judgment action. Annexed to the motion papers was
a document entitled "Partial Satisfaction of
Judgment" which had been executed by the insurer's
counsel on July 28, 2014, and which bore the caption of the
Supreme Court action. In the alternative, the insurer's
motion sought a "satisfaction of any entered
judgment" in the Civil Court, pursuant to CPLR 5020 (c).
The provider opposed the insurer's motion. By order
entered April 23, 2015, from which the insurer appeals, the
Civil Court (Robin Kelly Sheares, J.) denied the
insurer's motion. We affirm.
initially note that the branch of the insurer's motion
seeking "summary judgment" was inappropriate
because a judgment had already been entered against the
insurer. However, the insurer also sought, in the
alternative, a "satisfaction of any entered
judgment" in the Civil Court, based on the judgment in
favor of the insurer in the Supreme Court declaratory
judgment action. Although reference was made to CPLR 5020 (c)
in support of this branch of the insurer's motion, this
provision has no applicability to the circumstances herein.
If the insurer was actually seeking the entry of a
satisfaction of judgment, the proper way to seek such relief
would be by way of a motion pursuant to CPLR 5021 (a) (2).
However, in support of its motion, the insurer did not
demonstrate that it had filed a partial satisfaction of
judgment in the Supreme Court action, in accordance with CPLR
5020 (a). Consequently, insofar as the insurer's motion
sought the entry of a satisfaction of judgment in the Civil
Court action, such relief was properly denied by the Civil
the foregoing, it was apparently the insurer's objective
to have a portion of the judgment in the Supreme Court
declaratory judgment action fully offset the judgment
obtained against it in the Civil Court action. While a court
may exercise its "inherent authority to set one judgment
off against another" (see Joseph Kali Corp. v A.
Goldner, Inc., 49 A.D.3d 397, 398 ; see also
Scianna v Scianna, 205 A.D.2d 750');">205 A.D.2d 750 ), the granting
of such relief rests in the discretion of the court (see
Beecher v Vogt Mfg. Co., 227 NY 468, 473 ;
Kretsch v Denofrio, 137 A.D. 617, 619 ).
Assuming, without deciding, that the Civil Court possessed
the jurisdiction to entertain such an application (cf.
Stilwell v Carpenter, 62 NY 639 ), the Civil
Court's determination not to set off the judgments was
not an improvident exercise of discretion.
the order is affirmed.
P.J., WESTON and ALIOTTA, JJ., concur.