| Huerter v Astoria Fed. Sav. Bank |
| 2009 NY Slip Op 01951 [60 AD3d 815] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Gayle R. Huerter, Respondent, v Astoria Federal SavingsBank, Defendant, and Bruce S. Reznick et al., Appellants. |
—[*1] Richard J. Kaufman, Port Jefferson, N.Y., for respondent.
In an action, inter alia, to recover damages for negligence and conversion, the defendantsBruce S. Reznick and Peter Piccirillo appeal, as limited by their brief, from so much of ajudgment of the Supreme Court, Suffolk County (Blydenburgh, J.), entered April 12, 2007, as,upon an order of the same court dated July 25, 2006, granting that branch of the plaintiff'smotion which was for summary judgment on the first and second causes of action insofar asasserted against them, and upon an order of the same court dated September 28, 2006, grantingthat branch of the plaintiff's motion which was for the imposition of a sanction against thedefendant Bruce S. Reznick, is in favor of the plaintiff and against them in the principal sum of$22,559.71, and is in favor of the plaintiff and against the defendant Bruce S. Reznick in theprincipal sum of $9,725.
Ordered that the appeal by the defendant Peter Piccirillo from so much of the judgment as isin favor of the plaintiff and against the defendant Bruce S. Reznick in the principal sum of$9,725 is dismissed, as he is not aggrieved by that portion of the judgment (see CPLR5511); and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment on the first and second causes of action, seeking the return of fundswrongfully removed from her bank account, insofar as asserted against the appellants. We rejectthe appellants' [*2]contention that under the mistake of factdoctrine, they should be permitted to retain the funds wrongfully seized (see Banque Wormsv BankAmerica Intl., 77 NY2d 362, 366 [1991]; Bank of New York v Spiro, 267AD2d 339 [1999]). The mistake of fact doctrine is not applicable because the plaintiff made nomistake. Rather, the funds were wrongfully seized from her account.
We also reject the appellants' contention that the Supreme Court exhibited bias towardsthem. The court's decision was based on the merits of the parties' arguments rather than on anyalleged bias (see generally Pourooshasbv Pourooshasb, 4 AD3d 404 [2004]).
Finally, under the circumstances of this case, the Supreme Court's imposition of a sanctionwas a provident exercise of its discretion (see 22 NYCRR 130-1.1 [a], [c], [d]). Skelos,J.P., Fisher, Balkin and Belen, JJ., concur.