Istric v Norcon Elecs., Inc.

[*1] Istric v Norcon Elecs., Inc. 2005 NY Slip Op 50677(U) Decided on May 9, 2005 Civil Court, Kings County Bluth, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2005
Civil Court, Kings County

Paul Istric, Plaintiff,

against

Norcon Electronics, Inc., Norcon Communications, Inc., Norman Schlaff, Gerry Scheer and Scott Scheer, Defendant.



001468/92

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, defendants move by Order to Show Cause to modify the income execution issued by plaintiff to delete therefrom the interest which has accrued since the judgment was entered against defendant on May 9, 1997. For the following reasons, defendants' motion is denied.

In deciding this motion, the Court cannot consider the opposition papers submitted by plaintiff, appearing pro se, as they are unsworn and therefore inadmissible. See Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept 1991]. Although his submission is presented as an [*2]affirmation, plaintiff does not allege that he is an attorney, doctor, dentist, or osteopath, whose affirmations are admissible under CPLR § 2106.

While this case has a long history, for purposes of the instant dispute, the relevant facts, as outlined in defendants' moving papers, are as follows: On May 9, 1997, a judgment was entered for plaintiff against Gerry Scheer and Scott Scheer in the amount of $1,970 plus $225 in costs and disbursements, and $882.50 in interest from June 22, 1992, for a total judgment amount of $3,077.50.

On July 10, 1997, defendants' counsel wrote to plaintiff, who was and still is representing himself in this matter, offering to pay the full amount of the judgment in exchange for a "Satisfaction of Judgment in recordable form, as well as a Release." Defendants' attorneys did not include these documents with that letter. On October 6, 1997, plaintiff served defendants with a copy of the Judgment with Notice of Entry, with a note that included the following language: "I expect to receive from you the release papers and other papers to be sign [sic] by me in the near future, say two (2) weeks, otherwise I will be forced to execute the Judgment through the Sheriff's office." In response, defendants' counsel wrote to plaintiff on October 15, 1997 (more than five months after judgment had been entered), advising plaintiff that the firm was presently holding a check for $3,077.50 in escrow [FN1], and stating that "[p]ursuant to your letter of October 6, 1997, I have enclosed a Satisfaction of Judgment and Release which need to be signed by you...Upon my receipt of these documents, I shall likewise hold them in escrow and immediately send you my attorney's check in payment of the Judgment amount." The enclosed Release was a sweeping document releasing not only the judgment debtors Gerry Scheer and Scott Scheer, but also the other named defendants, Norcon Electronics, Inc., Norcon Communications, Inc., and Norman Schaff. Plaintiff never responded to defendants' October 1997 correspondence, and neither side followed up with the other.

Plaintiff did not send the Sheriff to execute on the judgment until more than seven years later. At oral argument, plaintiff contended that the delay was due to his inability to obtain a transcript of the judgment because the Court allegedly misplaced the file, a claim defendants dispute. In any event, the income execution served on defendants includes interest accrued on the judgment since the date of entry, May 9, 1997. Defendants' motion seeks to modify the income execution to delete therefrom all the interest that has accrued since October 15, 1997 the date of defendants' counsel's alleged second letter to plaintiff, which defendants contend was a tender. If interest did not stop, then as the date of this decision, May 9, 2005, the amount of interest from the date of the judgment to the date of the decision is $2,215.80.

A defendant's unconditional tender of the amount due on a judgment stops the running of postjudgment interest. See Meiselman v. Allstate Ins. Co., 197 AD2d 561, 602 NYS2d 659 [2nd [*3]Dept 1993]. Defendants argue that their October 15, 1997 letter constituted such a "tender" to plaintiff, and thereby tolled the running of interest as of that date. Defendants' argument fails for several reasons.

First, defendants never actually sent the $3,077.50 to the plaintiff. An offer to send payment is not equivalent to sending it. Since no money was sent, there was no tender.

Second, even if the defendants had sent the check for $3,077.50 to the plaintiff with their October 15th letter, it would not have been the full amount then due because more than five months of interest had already accrued on the judgment. Interest on a money judgment begins to run from the date of its entry. See CPLR § 5003. Thus, plaintiff was entitled to the interest that had accrued since May 9, 1997, which is calculated at nine percent per year. See CPLR § 5004. To toll the running of interest, a tender must include the full amount due. See Cafferty v. Scotti Bros. Records, Inc., 969 F Supp 193, 204-05 [SDNY 1997]; Garigen v. Morrow, 303 AD2d 956, 757 NYS2d 422 [4th Dept 2003] (tender was not unconditional because it did not include the interest, costs, and disbursements awarded by the court). Therefore, even if defendants had sent the check for $3,077.50, it would not have been sufficient.

Third, the tender was not unconditional, and therefore was ineffective to toll the running of interest. Defendants required plaintiff to properly execute and return two documents before they would pay the $3,077.50. The two documents, a satisfaction of judgment (or satisfaction piece) and a general release, serve different purposes, and each commands its own analysis.

A satisfaction piece is comparable to an official receipt; it is a statement acknowledging that the judgment has been satisfied (either wholly or partially). It is filed with the clerk of court and puts the world on notice that there is no longer an outstanding judgment. Although it is the judgment creditor's obligation to execute and file a satisfaction piece (CPLR § 5020), the risk of making the payment and not getting a satisfaction piece falls upon the judgment debtor.

The CPLR contemplates that there may be times when a judgment debtor who has paid the judgment cannot get the satisfaction piece, and provides that the judgment debtor may bring on a motion pursuant to CPLR § 5021 for a court order satisfying the judgment (fully or partially) as of record. There are also consequences to a judgment creditor who refuses to issue a satisfaction piece (See CPLR § 5020). This Court understands that judgment debtors such as defendants herein would want to exchange the money for the satisfaction piece; the judgment creditor is obligated to give one anyway. However, if the judgment debtor chooses to not pay the judgment until he receives a satisfaction piece, then the interest will continue to accrue.

The condition of a general release is another matter entirely. The judgment creditor has no obligation to execute a release, and it is inappropriate for the judgment debtor to demand the very broad protection ("from the beginning of the world to the date of this release") of a general release. Although parties often voluntarily exchange general releases in settlement, paying a judgment is not a settlement, and a plaintiff/judgment creditor would be well within his rights to [*4]refuse to generally release a judgment debtor.[FN2] Therefore, even if defendants had sent the correct amount of money to the plaintiff, the requirement of a satisfaction piece and a general release made the offer conditional, and did not toll the running of interest.

Accordingly, defendants' motion is denied.

This is the Decision and Order of the Court.

Dated: May 9, 2005

ARLENE P. BLUTH

Judge, Civil Court Footnotes

Footnote 1: Exhibit H to the moving papers is a copy of the front and back of Norcon's check to its lawyers, indicating "Settlement of Judgement [sic] on Istric Case," for the full amount of the judgment, which was deposited in the attorneys' IOLA Account.

Footnote 2:The Court notes that the general release submitted by defendants included not only the two individual judgment debtors as releasees, but also three other entities! Such an averbroad condition would be yet another reason to deny defendants' motion.