Opinion
2015-674 Q C
04-06-2016
Mid Island, LP, Doing Business as Turian Mgmt, Respondent, v. Limage Louis, Defendant, -and- Antonine Louis, Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 20, 2014. The order denied a motion by defendant Antonine Louis to "vacate judgment issued after inquest and restore to calendar." The appeal from the order entered November 20, 2014 brings up for review so much of a subsequent order of the same court (Ulysses Bernard Leverett, J.) entered February 4, 2015 as upon, in effect, renewal, again denied the motion by defendant Antonine Louis to "vacate judgment issued after inquest and restore to calendar" (see CPLR 5517 [b]).
ORDERED that the appeal from the order entered November 20, 2014 is dismissed, as that order was superseded by the order entered February 4, 2015, made upon, in effect, renewal; and it is further,
ORDERED that the order entered February 4, 2015, insofar as reviewed, is reversed, without costs, and, upon, in effect, renewal, the motion by defendant Antonine Louis to "vacate judgment issued after inquest and restore to calendar" is granted to the extent of directing that plaintiff make restitution to defendant Antonine Louis of all funds, in excess of $1,800, that were collected by plaintiff from defendant Antonine Louis's JP Morgan Chase Bank account.
In this action to recover damages for breach of a lease agreement, a default judgment was entered on November 25, 2013 awarding plaintiff the sum of $14,570. Thereafter, plaintiff moved for an order deeming the funds contained in a bank account that Antonine Louis (defendant) maintained at JP Morgan Chase Bank, which account plaintiff had restrained, to be non-exempt funds or, in the alternative, for a protective order, pursuant to CPLR 5222-a and 5240, prohibiting the bank from releasing said funds pending a hearing on the issue. The Civil Court, by order dated July 31, 2014, adjourned the first branch of the motion to September 30, 2014, and granted the branch of the motion for a temporary protective order. On September 30, 2014, the parties entered into a stipulation of settlement, "so-ordered" by the court, in which defendant agreed to release $1,800 from the restrained account. Thereafter, defendant moved to "vacate judgment issued after inquest and restore to calendar," asserting that she had proof that the funds in the account had been obtained from workers' compensation and were thus exempt. By order entered November 20, 2014, the Civil Court (William A. Viscovich, J.) denied the motion. After filing a notice of appeal from that order, defendant moved for, in effect, renewal, asserting that plaintiff had recovered an amount in excess of $1,800 from the account held at JP Morgan Chase, which contained funds exempt from collection. By order entered February 4, 2015, the Civil Court (Ulysses Bernard Leverett, J.), upon, in effect, renewal, again denied the motion. Defendant's appeal from the November 20, 2014 order brings up for review so much of the February 4, 2015 order as, upon, in effect, renewal, denied the motion ( see CPLR 5517 [b]).
The record establishes that the parties stipulated to plaintiff's recovery of funds from defendant's JP Morgan Chase account only to the extent of $1,800. No determination was made that the funds held in the account, other than the sum of $1,800, were non-exempt.
Accordingly, the order entered February 4, 2015, insofar as reviewed, is reversed, and, upon, in effect, renewal, the motion by defendant Antonine Louis to "vacate judgment issued after inquest and restore to calendar" is granted to the extent of directing that plaintiff make restitution to defendant Antonine Louis of all funds, in excess of $1,800, that were collected by plaintiff from defendant Antonine Louis's JP Morgan Chase Bank account.
Weston, J.P., Solomon and Elliot, JJ., concur. Decision Date: April 06, 2016