Opinion
2005-285 K C.
Decided December 2, 2005.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 24, 2004. The order denied that branch of defendants' motion, pursuant to CPLR 5015 (d), seeking an order of restitution of funds which were collected in satisfaction of a judgment rendered upon defendants' default, which judgment was subsequently vacated.
Order unanimously reversed without costs, that branch of defendants' motion seeking restitution is granted, and plaintiff is directed to make restitution to defendants in the principal sum of $5,016.78, with interest thereon from August 4, 2003.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
Plaintiff commenced the instant action to recover money due and owing under a commercial equipment finance lease. When defendants failed to appear or answer, a default judgment was entered against them, and said judgment was satisfied by execution on a savings account in the name of Andrew Thomas. Defendants subsequently moved to vacate the default judgment and, following a traverse hearing, the court below found that service had been improperly made and dismissed the action. The court, however, neglected to rule on defendants' request that plaintiff return the amount levied upon pursuant to the execution. Thereafter defendants made a motion to compel the turnover of funds, the subject of the instant appeal, which was denied by the court based upon its assumption that it no longer had jurisdiction over the matter since the action had been dismissed.
Where a judgment or order is set aside or vacated, the court has the power to direct and enforce restitution in order to restore the parties to the position they were in prior to the rendition of that judgment or order ( see CPLR 5015 [d]). A new plenary action need not be commenced. Contrary to the conclusion of the court below, despite its dismissal of the action after the traverse hearing, it nonetheless retained jurisdiction to direct plaintiff to make restitution in the underlying action ( see Chase Manhattan Bank, U.S.A. v. Kassam, 167 Misc 2d 933). It is further noted that in the exercise of its jurisdiction, the New York City Civil Court has "all of the powers that the supreme court would have in like actions and proceedings" (CCA 212).
Accordingly, the order of the court below is reversed, that portion of defendants' motion seeking restitution from plaintiff in the principal sum of $5,016.78 is granted, and plaintiff is directed to make restitution to defendants of $5,016.78, with interest thereon from August 4, 2003.