Opinion
December 2, 1997
Appeal from the Supreme Court, Bronx County (Stanley Green, J.).
The record is clear that defendants' primary insurance carrier paid plaintiff $577,805.25 in partial satisfaction of a judgment in plaintiff's favor so that plaintiff would not execute on defendants' property pending appeal. Plaintiff's contention that this sum was paid in settlement of any part of the action is without foundation in the record. When the judgment was later reversed and the complaint dismissed ( 227 A.D.2d 256, lv denied 88 N.Y.2d 812), plaintiff was properly directed to make restitution (CPLR 5015 [d]; see, Mormilo v. Allied Stevedores Corp., 8 A.D.2d 217).
Concur — Murphy, P.J., Rosenberger, Ellerin, Rubin and Tom, JJ. [ See, 170 Misc.2d 833.].