Opinion
Submitted January 5, 2000
February 17, 2000
In an action for restitution, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered February 19, 1999, as granted that branch of the motion of the defendants Thomas Gillen and Gillen Living Trust d/b/a Jumbo Investment which was for summary judgment dismissing the complaint insofar as asserted against them, and the defendants Thomas Gillen and Gillen Living Trust d/b/a Jumbo Investment cross appeal from so much of the same order as denied that branch of their motion which was to impose a sanction against the plaintiff.
Nixon Peabody, LLP, Garden City, N.Y. (Joseph Ortego and Richard Leffer of Counsel), for appellant-respondent.
Gandin, Schotsky, Rappaport, Glass Greene, LLP, Melville, N Y (Kevin E. Balfe and Karen A. Michael of counsel), for respondents-appellants.
LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.
The plaintiff commenced the instant action for restitution based on a double payment it mistakenly made to the defendants for the redemption of a certain tax lien. In light of the fact that the defendant Florence Schafani conceded that a double payment was mistakenly made, that she agreed to return the overpayment, and that she was directed to pay the overpayment into court for disbursement to the plaintiff, summary judgment was properly awarded to the defendants Thomas Gillen and Gillen Living Trust d/b/a Jumbo Investment.
The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendants Thomas Gillen and Gillen Living Trust d/b/a Jumbo Investment application which was to impose a sanction against the plaintiff pursuant to 22 NYCRR 130-1.1 et seq.