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Current Developments in the Commercial Divisions of the
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Posted: November 13, 2015

Prior Criminal Restitution Payments Do Not Prohibit Claim in a Civil Action

On November 5, 2015, the First Department issued a decision in Marion Blumenthal Trust v. Arbor Commercial Mortgage, LLC, 2015 NY Slip Op. 08060, holding that prior criminal restitution payments do not prevent a plaintiff for asserting a claim for damages beyond the restitution amount, explaining:

We reject appellant Amy Hochfelder’s argument that, given the restitution order in Arbor’s favor, it is precluded from pursuing its civil claims in this litigation. Penal Law § 60.27 (6) provides in pertinent part that any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment. This Court has recognized that Penal Law § 60.27 secures a victim’s independent, parallel right also to pursue a defendant civilly should there be a deficiency in the restitution amount.

(Internal quotations and citations omitted) (emphasis added).

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