Fakhoury v Romano

[*1] Fakhoury v Romano 2008 NY Slip Op 50880(U) [19 Misc 3d 138(A)] Decided on April 25, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 25, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2007-253 D C.

Rami Fakhoury, Respondent, -and- Jaser Fakhoury, Plaintiff,

against

Jeanette Romano and Jeanette Lown, Defendants, -and- Bank of New York, Appellant.

Appeal from a decision and order of the City Court of Poughkeepsie, Dutchess County (Kathleen A. Molony, J.), entered September 22, 2006, deemed from a judgment of said court entered on the same date (see CPLR 5520 [c]). The judgment,

insofar as appealed from, after a nonjury trial, awarded plaintiff Rami Fakhoury the principal sum of $3,391.05 as against defendant Bank of New York.

Judgment, insofar as appealed from, reversed without costs and action dismissed as against defendant Bank of New York. [*2]

In an unrelated action, a judgment was entered against plaintiff Jaser Fakhoury, and enforcement proceedings were commenced by the judgment creditor. In the judgment creditor's supplementary proceeding pursuant to CPLR 5225 (b), both Rami Fakhoury and Jaser Fakhoury defaulted, and the marshal executed by levying the amount of $3,391.05 from their joint Bank of New York account. In the instant small claims action, plaintiffs seek to recover damages from, inter alia, defendant Bank of New York for its failure to comply with Rami Fakhoury's instructions to have Jaser Fakhoury's name removed from the joint account. After trial, the court awarded judgment in favor of plaintiff Rami Fakhoury in the principal sum of $3,391.05 as against defendant Bank of New York, and said defendant appeals.

It appears from the record before us that plaintiffs were given proper notice of the supplementary proceeding and were afforded an opportunity for a hearing. Their default constituted an admission of all factual matters relating to said supplementary proceeding (see generally Curiale v Ardra, Ins. Co., 88 NY2d 268, 279 [1996]). Consequently, Rami Fakhoury cannot now litigate the issue that Jaser Fakhoury should not have been named on said bank account or that he had no interest therein at the time the judgment against him was enforced. Consequently, substantial justice was not done between the parties according to the rules and principles of substantive law (UCCA 1807). Accordingly, the judgment is reversed and the action dismissed.

Tanenbaum, J.P., Molia and Scheinkman, JJ., concur.
Decision Date: April 25, 2008