Bandler v Liberty Chevrolet, Inc.

[*1] Bandler v Liberty Chevrolet, Inc. 2009 NY Slip Op 52095(U) [25 Misc 3d 1214(A)] Decided on September 15, 2009 Civil Court Of The City Of New York, Bronx County Tapia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2009
Civil Court of the City of New York, Bronx County

Michael Bandler, Plaintiff,

against

Liberty Chevrolet, Inc., Defendant.



CV-035417-07/BX



For Plaintiff: Michael Bandler, pro se

For Defendant: Jeanette M. Westphal

Fernando Tapia, J.

In this post-judgment collection supplementary proceeding involving a pro se plaintiff/judgment creditor, this Court, after oral arguments and review of the papers of both parties' respective motions, hereby decides the following:

-Defendant's Orders to Show Cause to lift restraint from its bank account areGRANTED to the extent that the Appeal Bond is modified;

-Defendant's motions to quash the information subpoena are GRANTED;

-Plaintiff's motion to strike Notice of Appeal is DENIED; and

-Defendant's motion to extend time to appeal this matter pursuant to CPLR 5520(a)is GRANTED.

The above-captioned action is rich in motion history, but deficient in resolution. As such, this Court discusses each relief sought with respect to the parties' sundry motions. The main issue at the forefront is Defendant's Notice of Appeal with respect to its timeliness.

I. FACTUAL BACKGROUND

Pro se Plaintiff ["Plaintiff"] was awarded default judgment [FN1] for $23,348.84 on September 10, 2001. See May 1, 2009 Bandler Appendix, Tab 1. Unable to collect judgment from the original debtors, Plaintiff sought an information subpoena from Defendant-Liberty Chevrolet on [*2]or about February 4, 2002. Id. at Tab 2. Defendant was the landlord [FN2] of Dream Cars, the now-defunct business who was the original judgment debtor. Id. at Tab 9, ¶ 35.

After much wrangling, Defendant finally answered the 2002 information subpoena. See May 4, 2009 Pl.'s Aff. at ¶ 8. The City Marshal, however, notified Plaintiff on or about October 22, 2002, informing him that it was closing its file because Defendant was not holding any monies or paying monies to Dream Cars, the original debtor. See May 1, 2009 Bandler Appendix at Tab 7.

Still at an impasse, Plaintiff filed a Verified Complaint against Defendant dated February 27, 2007. Id. at Tab 9. Chase Bank was a co-defendant at the time, but subsequently settled. Defendant filed its Verified Answer dated September 5, 2007. Id. at Tab 11.

On February 2, 2009, this Court granted Plaintiff a judgment amount of $27,405.15. The Notice of Entry was entered the same day. Id. at Tab 13; see also April 20, 2009 Def.'s Aff. at

Ex. A. Defendant served a Notice of Appeal on Plaintiff which was filed with the Clerk's Office of the Civil Court on March 13, 2009. Id. at Tab 15; see also April 20, 2009 Def.'s Aff. at Ex. B. Plaintiff again served an information subpoena on Defendant dated March 18, 2009. Id. at Tab 16. Defendant failed to provide responses.

On or about March 31, 2009, Plaintiff levied two of Defendant's bank accounts for twice the sum of judgment.[FN3] Id. at Tabs 20 & 21; see also April 20, 2009 Def.'s Aff. at ¶ 4. Defendant received a copy of the Restraining Notice via USPS on April 6, 2009, per the notation found on the Notice. Id. at Tab 23. Defendant then faxed the notice to its attorney who then filed an appeal bond. In response to Plaintiff's levy of Defendant's bank accounts, Defendant filed two Orders to Show Cause ["OSC"] to lift the restraints: one dated April 9, 2009, and the other dated April 10, 2009. Id. at Tabs 22 & 24.

Defendant also filed an appeal bond in the amount of $33,709.00 dated April 14, 2009. Id. at Tab 30. The purpose and function of the appeal bond was to stay all proceedings until determination by the Appellate Term. See April 20, 2009 Def.'s Aff. at Ex. D. Although Defendant sought to counter both the [March 18, 2009] information subpoena and Restraining Notice with the bond, it was unintentionally filed with the wrong appellate branch of the supreme court, thereby inadvertently creating more issues in this matter. Defendant also filed a cross-motion dated April 14, 2009, seeking an Order to quash Plaintiff's information subpoena. See May 1, 2009 Bandler Appendix at Tab 26.

Plaintiff in turn filed a cross-motion dated May 1, 2009, claiming Defendant was liable for "unclean hands" with respect to the non-response of the information subpoena. It was in this [*3]cross-motion that Plaintiff's Notice of Exception appeared for the first time regarding Plaintiff's opposition to Defendant's imposition of the appeal bond and the surety making the bond, despite its incorrect filing with the Appellate Division, instead of the Appellate Term. Id. at Tab 31.

On May 4, 2009, Hon. Irving Rosen, JHO, decided on Defendant's OSC [to lift the holds on its bank accounts] and found that any and all executions or levies against Defendant's two bank accounts were stayed pending further order of the Court. Plaintiff also filed its sworn affidavit dated May 4, 2009, again calling to attention the Notice of Exception to Defendant's appeal bond. See May 4, 2009 Bandler Aff. at ¶ 48. Defendant re-filed its Notice of Appeal on May 8, 2009. See June 2, 2009 Def.'s Cross-Motion, Ex. C.

Defendant in turn filed its cross-motion dated June 2, 2009, seeking an Order to extend time to amend its Notice of Appeal. On or about June 11, 2009, Plaintiff filed its opposition.

Pro se Plaintiff lives in Montclair, NJ.

II. CONDITIONAL LIFTS ON THE LEVY OF DEFENDANT'S BANK ACCOUNTS

As previously mentioned, Hon. Irving Rosen, JHO, decided on Defendant's OSCs and found that any and all executions or holds against Defendant's two bank accounts were stayed pending further order of the Court. This Court now follows up Hon. Rosen's Order and hereby allows Defendant to lift the restraints from the two bank accounts on the condition that Defendant modifies the Appeal Bond from $33,709.00 to $54,810.30.

Pursuant to CPLR 5204 ["Release of lien or levy upon appeal"],

"Upon motion of the judgment debtor, upon notice to the judgment creditor,

the sheriff and the sureties upon the undertaking, the court may order . . .

that the lien of a money judgment, or that a levy made pursuant to an execution

issued upon a money judgment, be released . . . upon the ground that the

judgment debtor has given an undertaking upon appeal sufficient to secure the

judgment creditor."

A defendant appealing an ordinary money judgment therefore gets a stay of enforcement without a court order when the defendant serves a notice of appeal, but only if the defendant gives an undertaking to pay the judgment in the event it is affirmed or the appeal is dismissed. See CPLR 5519(a)(2) ["Stay of enforcement"].[FN4]

Thus, in this Court's discretion, upon filing of this Order, Defendant is directed to amend its April 14, 2009 Appeal Bond to $54,810.30 within thirty [30] days from the date of this Order, so that the holds can be lifted from both bank accounts. III. INFORMATION SUBPOENA IS QUASHED A subpoena compels disclosure of relevant matters pertaining to the satisfaction of the [*4]judgment. Oates v. Oates, 33 AD2d 133, 135 (1st Dept 1969); see also CPLR 5224(a)(3) ["Subpoena; procedure"]. Furthermore, the purpose of restraining notices is to prevent the third party from giving up the debtor's assets pending procurement of a turnover order. See City of New York v. Panzirer, 23 AD2d 158, 162-63 (Sup Ct, App Div, 1st Dept 1965).[FN5]

Here, Plaintiff no longer needs the responses from the information subpoena. Receiving complete answers to the March 18, 2009 information subpoena is superfluous inasmuch as Plaintiff knows the names of Defendant' bank accounts. See May 1, 2009 Bandler Appendix at Tab 16.

In addition, Plaintiff has already obtained restraining notices on Defendant's bank accounts which would not have been effected had Defendant not been deemed a necessary judgment debtor. Holds on Defendant's bank accounts are in place which would also negate the need for the information subpoena. This Court therefore recognizes Defendant's argument that the relief sought in the information subpoena is moot. See April 20, 2009 Def.'s Aff. at ¶ 4. IV. SUPERFICIAL MISTAKE ON NOTICE OF APPEAL IS EXCUSABLE ERROR A. Inadvertent use of "Division" versus "Term"

Motion practice is not impervious to generally excusable mistakes such as clerical/scrivener's errors. Here, Defendant inadvertently used "Division" instead of "Term" in its original Notice of Appeal. Defendant therefore filed an undertaking pending determination of its motion to amend its Notice of Appeal nunc pro tunc for leave to appeal to the Appellate Term. This Court finds that the use of "Division" instead of "Term" to be excusable error.Recognizing that such clerical errors exist at all levels of a case, litigants who make such mistakes can seek refuge in CPLR 5520(a) ["Omissions"] which states: "[i]f an appellant either serves or files a timely notice of appeal . . . but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken or the court of original instance may grant an extension of time for curing the omission." In Messner v. Messner, the First Department held that since the service of the notice of appeal was timely, the late filing of the notice can and will be excused by the court. Messner v. Messner, 42 AD2d 889, 890 (Sup Ct, App Div, 1st Dept 1973); see also El Dorado Aluminum Products, Inc. v. Jeros, 15 AD2d 781 (Sup Ct App Div 2d Dept 1962) (where a plaintiff's inadvertent specification of appellate division instead of appellate term was not grounds for vacating or modifying appellate division's order dismissing appeal on the ground that such appeal lies only to the appellate term. The plaintiff could apply in city court to amend the notice of appeal). The Second Circuit has held that the power of an appellate court to review a judgment is subject to a timely appeal. M Entertainment, Inc. v. Leydier, 62 AD3d 627, 628 (Sup Ct, App Div, 1st Dept 2009) (quoting Hecht v. City of New York, 60 NY2d 57, 61 (NY App Ct 1983). If an appeal is taken to the wrong court, it is simply transferred to the right one. See NY Const. Art. [*5]VI, § 5(b).[FN6] The court to which the appeal is erroneously taken can even effect the transfer sua sponte. Biggs v. Town of Huntington, 35 NY2d 904 (NY App Ct 1974).In the case at bar, Defendant timely served its first Notice of Appeal, despite erroneously stating that its appeal was to the "Appellate Division" instead of the "Appellate Term." Moreover, there is no doubt that Plaintiff received the Notice of Appeal because it sent Defendant another information subpoena just days after being served the notice of appeal. Additionally, this Court is convinced that Defendant intended to file a timely appeal, as the date of the first Notice of Appeal was on February 26, 2009, well within the requisite thirty days in which to file an appeal. It was only when Defendant's attorney sought to amend the Notice of Appeal that the mistake was caught. See June 2, 2009 Def.'s Opp. Aff. at ¶ 6.There is a two-prong procedure to properly take an appeal pursuant to CPLR 5513(b):

[1] serve notice of appeal and [2] file appeal with the clerk. Here, Defendant managed to survive by fulfilling the first prong correctly. It was the second prong where Defendant faltered because although the Notice of Appeal was filed with the Civil Court Clerk, the information in the notice of appeal contained a cosmetic mistake.

Plaintiff argues that pursuant to CPLR 5513(a)[FN7] and CPLR 5514(c),[FN8] the time to take an appeal is strict. See June 10, 2009 Pl.'s Opp. at p. 4. Under CPLR 5514(c), however, it also recognizes the exceptions outlined in CPLR 5520. Although the time period for filing a notice of appeal "is nonwaivable and jurisdictional," see Jones Sledzik Garneau & Nardone, LLP v. Schloss, 37 AD3d 417 (Sup Ct, App Div, 2d Dept 2007), in the case at hand, Defendant's filing was within the 30 days from the judgment, albeit to the wrong appellate branch of the supreme court. A regrettable error, but a simple one that can be cured without prejudice. To hold otherwise would be to extol form over substance. This the Court will not do. As such, Defendant's Motion to Amend Notice of Appeal nunc pro tunc is granted.

B. Plaintiff's Notice of Exception does not meet the requirements under CPLR 2506

Under CPLR 2506(a) & (b) ["Exception to surety; allowance where no exception taken"], a party can duly notify the adversary of its objection/opposition to a surety being made via a "Notice of Exception." To be valid, however, the notice must meet two parts: [1] the party seeking the exception can object to the sufficiency of a surety as long as the certificate of qualification was issued with the undertaking pursuant to NY Insurance Law § 1111; and [2] the party seeking the exception to the surety must make its objection within ten [10] days of [*6]receiving a copy of the undertaking.

Here, although Plaintiff has served two Notices of Exceptions, not only were they untimely filed, but Defendant fulfilled the requirement under CPLR 2506(a) of including a certificate of qualification to its undertaking. See May 1, 2009 Bandler Appendix at Tab 29. The Notice of Exception, therefore, cannot be entertained by this Court. V. CONCLUSION Inadvertently writing the wrong telephone number or misspelling an e-mail address is as common as making clerical errors: "street" instead of "avenue;" "2600 Pennsylvania Avenue" instead of "1600 Pennsylvania Avenue;" and "Division" instead of "Term." Just as sending an incorrectly typed e-mail address will generally bounce back to the author, so should a superficial mistake as the one that Defendant made in its Notice of Appeal be "bounced back" for correction. Such an error is curable and does not prejudice any of the parties.WHEREFORE Defendant is hereby directed to amend its Appeal Bond to $54,810.30 within 30 days from this Order so that the holds on its two bank accounts can be lifted. In addition, Plaintiff's motion to strike Defendant's Notice to Appeal is DENIED because Defendant's mistake is not a fatal defect that makes the appeal out of time. It therefore follows that Defendant's motion to amend pursuant to CPLR 5520(a) is GRANTED.This constitutes the Decision and Order of this Court.

Dated:September 15, 2009___________________________________ Bronx, NYHon. Fernando Tapia, J.C.C. Footnotes

Footnote 1: Default judgment was for Bandler v. DNL Motor Sports Ltd., d/b/a MK Wheelz and Discount Motorsports Mehrak Electronics Ltd., d/b/a Dream Cars, Index No. CV-038493-00/BX.

Footnote 2: According to the March 31, 1999 balance sheet of DNL Motorsports, Ltd., the lease security is in the amount of two thousand one hundred dollars [$2,100.00]. In addition to the September 2008 deposition of Jane Paragon, the general office manager at Liberty Chevrolet, see May 4, 2009 Bandler Aff. at ¶¶ 19-20, Defendant-Liberty Chevrolet also gave defendant-Dream Cars two checks in early 2002, which prove their fiduciary relationship. Id. at Tab 5; see also Bata Shoe Co., Inc. v. Silvestre Segarra E. Hijos, S.A.,58 AD2d 133, 135 (1st Dept 1977) (where accounts receivable are contract obligations and are a debt having immediate value that can be reached in enforcement proceedings).

Footnote 3: The two bank accounts as per the two Orders to Show Cause are JPMorgan Chase and the former Washington Mutual [now Chase]. The withheld amount is $54,810.30. See Bandler Appendix at Tab 23.

Footnote 4: Under CPLR 5519(a)(2), "[s]ervice upon the adverse party of a notice of appeal . . . stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where . . . the judgment or order directs the payment of a sum of money, and an undertaking in that sum is given that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant . . . shall pay the amount directed to be paid by the judgment or order . . ."

Footnote 5: In this race between two judgment creditors, the First Department held that judgment creditor-bank had priority over judgment creditor-City of New York because the bank executed the levy before the City of New York did. The City of New York did not have priority because it sought out an information subpoena and restraining notice instead of executing a levy.

Footnote 6: Under NY Const. Art. VI, § 5(b), "[i]f any appeal is taken to an appeals court which is not authorized to review such judgment or order, the court shall transfer the appeal to an appeals court which is authorized to review such judgment or order."

Footnote 7: Under CPLR 5513(a) ["Time to take appeal"], "[a]n appeal as or right must be taken within thirty days after service by a party upon the appellant or a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof."

Footnote 8: Under CPLR 5514(c) ["Other extensions of time"], "[n]o extension of time shall be granted for taking an appeal or for moving for permission to appeal except as provided in this section . . ."