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Procedurally improperJuly 25, 2017

Rehabxpress, PT, P.C. v Auto One Ins. Co., 2017 NY Slip Op 27246 (App. Term 2d Dept. 2017)

Mr. Rybak likes to chide me about my not publishing my losses on this blog.  I always like to tell him it is my blog and I can publish what I want.  In all seriousness, sometimes I am guilty of thinking way outside the box and perhaps a few solar systems away.   Give this one a “P” for Pluto the planet that is not a star.

Here, I figured I could take a cost and disbursement judgment, offset it against a Civil Court judgment and be free and clear.  It seemed so logical to me.  Apparently, the gang on the 15th floor at 141 Livingston disagreed with me or, even worse, left open the issue for another day.

First, they stated the partial SOJ was never filed.  It was e-filed but the “filed” one was not placed in the papers.  CPLR 2001 error.  But the real crux of the case was as follows:

“Notwithstanding 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 AD3d 397, 398 [2008]; see also Scianna v Scianna, 205 AD2d 750 [1994]), the granting of such relief rests in the discretion of the court (see Beecher v Vogt Mfg. Co., 227 NY 468, 473 [1920]; Kretsch v Denofrio, 137 App Div 617, 619 [1910]). Assuming, without deciding, that the Civil Court possessed the jurisdiction to entertain such an application (cf. Stilwell v Carpenter, 62 NY 639 [1875]), the Civil Court’s determination not to set off the judgments was not an improvident exercise of discretion.”

(Note: my template for this motion says CPLR 5020(c) – it should say 5021(a)(2))

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