Key Bank v. Diamond ( 1997 )

—Order unanimously reversed on the law without costs, cross motion denied, motion granted and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in denying the motion of plaintiff, Key Bank of New York (Key Bank), for an amended final judgment and in granting the cross motion of defendant Morris Diamond for restitution, satisfactions of judgments and an accounting. Key Bank was entitled to use the proceeds of the sale of Clinical Data stock to satisfy its judgment against defendant Kessler Graphics Corp. (Kessler Graphics). The stock had been pledged to Key Bank as security for a demand note to Kessler Graphics, and Key Bank’s judgment against Kessler Graphics for the amount due and owing on the note was affirmed by this Court (Key Bank v Kessler Graphics Corp., 177 AD2d 1048). Our decision in Key Bank v Diamond (203 AD2d 896) is not to the contrary. The issue whether the proceeds from the sale of the Clinical Data stock could be used to satisfy Key Bank’s judgment against Kessler Graphics was not before us on that appeal. The matter is therefore remitted to Supreme Court to grant judgment in favor of Key Bank against Diamond in accordance with the proposed amended final judgment submitted by Key Bank. (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Satisfy Judgment.) Present—Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.