Singh v Singh

[*1] Singh v Singh 2010 NY Slip Op 51945(U) [29 Misc 3d 1222(A)] Decided on November 10, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2010
Supreme Court, Queens County

Harjinder Singh

against

Sukhwinder Singh, et al.



9893/2009



For the Plaintiff: Bhatia & Associates, P.C., by Satish K. Bhatia, Esq., 38 West 32nd St., New York, NY 10001

For defendant Sovereign Bank: Cullen and Dykman, LLP, by Richard A. Coppolla, Esq., 44 Wall St., New York, New York 10005

For defendant Sukhwinder Singh: Pro se opposition

Charles J. Markey, J.

The following papers numbered 1 to 16 read on this motion by plaintiff for a default judgment against defendant Sukhwinder Singh and for a mandatory injunction directing defendants to remove the hold with respect to plaintiff's safe deposit box, No. dddd-eee, and joint bank accounts in the names of Harjinder Singh and his wife Kulwinder Kaur, that are maintained by Sovereign Bank. Defendant Sovereign Bank cross-moves in opposition and seeks an order granting summary judgment dismissing the complaint in its entirety, or for an order pursuant to CPLR 1006, discharging it from liability against plaintiff and co-defendant, and awarding it costs and sanctions, pursuant to 22 NYCRR section 130-1.2 and 22 NYCRR section 130-2.2.

Papers Numbered

Notice of Motion-Affidavits-Exhibits (A-D)......................................1-5

Verified Answer..................................................................................6

Notice of Cross Motion-Affidavits-Exhibits (A-M)...........................7-11

Opposing Affirmation-Exhibits (A-B)................................................ 12-15

Other Documents................................................................................. 16

Upon the foregoing papers, the motion is determined as follows:

On May 12, 2002, Sukhwinder Singh was awarded a judgment against Harjinder Singh in the sum of $3,352.50, following a trial in the Civil Court of the City of New York, Small Claims [*2]Part, Queens County, (SCQ 9382/01).

On November 20, 2002, Harjinder Singh was awarded a judgment against Sukhwinder Singh in the sum of $3,031.25, following an inquest in the Civil Court of the City of New York, Queens County, (Index No. 86098/02). The judgment was entered on November 27, 2002.

In November 2006, Sovereign Bank received an information subpoena with a restraining notice dated November 8, 2006 in connection with said judgment. Sovereign Bank subsequently placed two holds on two individual accounts in the name of Harjinder Singh (account numbers aaaaaaaaa and bbbbbbbbb)[FN1] and on two joint accounts in the name of Harjinder Singh and his wife, Kulwinder Kaur (account numbers yyyyyyyyy and zzzzzzzzz). In addition, Sovereign Bank placed a hold on safe deposit box number dddd-eee.

On January 5, 2007, Sovereign Bank received a levy and execution with notice to garnishee from the Marshal of the City of New York. In compliance with said notice, Sovereign Bank sent a check dated February 5, 2007 to the City Marshal in the sum of $1,422.97, comprising the total amount held in Harjinder Singh's individual accounts at the bank. Since Harjinder's remaining accounts are jointly held with his wife, Sovereign Bank requested that Sukhwinder Singh or his counsel obtain a turnover order prior to the release of the jointly held funds to the City Marshal or judgment creditor. These funds and the safe deposit box remain subject to the restraining notice, as neither Sukhwinder Singh nor his counsel moved to obtain a turnover order.

On January 24, 2007, Harjinder Singh commenced an action against Sukhwinder Singh in this court (Index No. 2255/07) to recover $2,860.00 in unpaid rent, $1,400.00 in unpaid utility bills, $2,500.00 towards an unpaid loan, and an unspecified amount for slander. Justice Valerie Brathwaite Nelson, of this Court, in an order dated December 21, 2007, granted Harjinder Singh a default judgment against Sukhwinder Singh as he had failed to appear or answer the complaint, and directed that as to the first, second, and third causes of action, that the "plaintiff may enter a default judgment as to those causes of action in the amount of $6,760.00 with interest at a rate of 9% from January 24, 2007," and severed the fourth cause of action and set it down for an inquest as to damages. A copy of the January 24, 2007 order was served on Sukhwinder Singh, together with notice of entry on April 17, 2008.

The inquest on the fourth cause of action was scheduled for April 18, 2008. On March 26, 2008, counsel for Harjinder Singh filed an order to show cause which sought an order directing Sukhwinder Singh and Sovereign Bank to remover the hold on safe deposit box number dddd-eee and the joint accounts held by Harjinder Singh and his wife Kulwinder Kaur, (bearing numbers yyyyyyyyy and zzzzzzzzz). Justice Brathwaite Nelson declined to sign the order to show cause, pointing to the failure to submit admissible evidence with respect to the [*3]accounts, the restraint, and the Civil Court judgment. Sovereign Bank thereafter provided the necessary documents to counsel for Harjinder Singh, following a request for said documents.

On April 3, 2008, a second order to show cause for the identical relief was filed with the Court. Justice Brathwaite Nelson denied the requested relief, since the movant failed to establish that service was effectuated in the manner specified in the order to show cause.

Harjinder Singh thereafter moved in that action for an order directing Sukhwinder Singh and Sovereign Bank to remove the hold on the safe deposit bank and the two jointly held accounts. Justice Brathwaite Nelson, in an order dated March 3, 2009, stated that it appeared that the Civil Court judgment obtained by Sukhwinder Singh was never satisfied and therefore a restraint was placed on the plaintiff's safe deposit box and two bank accounts held with Sovereign Bank. On December 21, 2007, Harjinder Singh was awarded a default judgment and granted leave to enter a judgment against Sukhwinder Singh in the amount of $6,760.00 with interest [another court order inverted numerals in that amount, but the correct amount was $6,760.00]. Justice Brathwaite Nelson also indicated, regarding the severed cause of action, that Harjinder Singh was granted a judgment against Sukhwinder Singh in the amount of $5,000.00 with interest, pursuant to a memorandum decision dated March 2, 2009, directing that the movant submit a judgment.

Justice Brathwaite Nelson further stated, in a decision dated March 3, 2009 and entered on March 9, 2009, in an action between Harjinder Singh as the plaintiff and Sukwinder Singh as the defendant, as follows:

Plaintiff [Harjinder Singh] argues that the hold on his account and safety deposit box should be removed inasmuch as he has a judgment against the defendant for an amount which exceeds the amount of the judgment the defendant has against him. However, plaintiff fails to support this argument with any relevant statutes or case law which stand for the proposition that his judgment in the matter herein entitles him to an offset in an unrelated matter tried in a different court. Accordingly, the motion is denied.

Justice Brathwaite Nelson, in a memorandum decision dated March 2, 2009, following the inquest on Harjinder Singh's fourth cause of action for slander, awarded damages against the defendant Sukhwinder Singh in the amount of $5,000.00, with interest from January 24, 2007 and costs, to be calculated by the clerk, and directed that the plaintiff therein "Submit judgment."

Plaintiff Harjinder Singh commenced the within action against Sukhwinder Singh and Sovereign Bank on April 16, 2009, seeking a mandatory injunction directing the defendants to remove the hold placed on the safe deposit box number dddd-eee and the two joint accounts, numbers yyyyyyyyy and zzzzzzzzz, in the name of Harjinder Singh and his wife, Kulwinder Kaur. Plaintiff asserts that the restraints placed on the accounts are not justified in light of the judgments obtained by Harjinder Singh against Sukhwinder Singh in the sums of $6,760.00 and $5,000.00, in the Supreme Court action (Index No. 2255/07) and the judgment in the sum of [*4]$3,031.25 obtained in the Civil Court action (Index No. 86098/02). He further alleges that the bank will neither pay any amount to Sukhwinder Singh or remove the hold, without an appropriate court order.

Defendants Sovereign Bank and Sukhwinder Singh were served with process on May 28, 2009, and the affidavits of service were filed on June 1, 2009. Defendant Sovereign Bank served an answer and interposed five affirmative defenses.

The plaintiff Harjinder Singh moves for a default judgment against defendant Sukhwinder Singh and for a mandatory injunction directing defendants to remove the hold with respect to plaintiff's safe deposit box, No. dddd-eee, and joint bank accounts in the names of Harjinder Singh and his wife Kulwinder Kaur, that are maintained by Sovereign Bank.

Defendant Sovereign Bank cross-moves in opposition and seeks an order granting summary judgment dismissing the complaint in its entirety, or for an order pursuant to CPLR 1006, discharging it from liability against plaintiff and co-defendant, and awarding it costs and sanctions, pursuant to 22 NYCRR section 130-1.2 and 22 NYCRR section 130-2.2.

On July 30, 2009, plaintiff Harjinder Singh served the within motion for a default judgment against Sukhwinder Singh and directing the defendants to remove the hold placed on the subject safe deposit box and two joint bank accounts of Harjinder Singh and his wife. Defendant Sovereign Bank cross-moves for an order granting summary judgment dismissing the complaint in its entirety, and in the alternative for an order pursuant to CPLR 1006, discharging it from liability against plaintiff and co-defendant, and for an award of costs and sanctions, pursuant to 22 NYCRR 130-1.2, and 22 NYCCR 130-2.2.

In opposition to the cross motion, counsel for plaintiff states in his affidavit that defendant Sukhwinder Singh had filed for bankruptcy on May 21, 2002, and was granted a discharge in bankruptcy on November 6, 2003, and had failed to include the Civil Court judgments in Schedule B of his bankruptcy petition. Counsel asserts that Sukhwinder Singh had committed bankruptcy fraud, and that the right to enforce the judgment in favor of Sukhwinder Singh belongs to the Trustee in bankruptcy. Plaintiff Harjinder Singh further argues that the restraining notice served on the bank was unauthorized.

This Court granted the parties numerous adjournments, as the Trustee had filed a motion to reopen the bankruptcy petition filed by defendant Sukhwinder Singh. That motion was scheduled to be heard on December 22, 2009, at which time Trustee submitted a letter to the United States Bankruptcy Court for the eastern District of New York, withdrawing said motion. On February 16, 2010, Harjinder Singh filed a motion to reopen the bankruptcy petition that was denied by the Bankruptcy Court on April 22, 2010. Counsel for Harjinder Singh thereafter so informed this court, and the within matter was fully submitted on June 24, 2010.

The records of the Clerk of this Court reveal that defendant Sukhwinder Singh, pro se, [*5]filed an "affidevit (sic) verified answer" on or about August 18, 2009. However, no affidavit of service was filed, and it does not appear that this answer was served on the plaintiff and co-defendant. On October 16, 2009, Sukhwinder Singh, pro se, served a second verified answer dated October 14, 2009, which counsel for plaintiff rejected as untimely on October 21, 2009. This Court, however, will consider Sukhwinder Singh's verified answer of October 14, 2009, and supporting papers, as opposition papers to the plaintiff's motion.

In order to be entitled to a default judgment against defendant Sukhwinder Singh, plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default in answering or appearing (see, CPLR 3215[f]; Triangle Props No.2 LLC v Narang, 73 AD3d 1030 [2nd Dept. 2010]; Matone v Sycamore Realty Corp., 50 AD3d 978 [2nd Dept. 2008]; Allstate Ins. Co. v Austin, 48 AD3d 720 [2nd Dept. 2008]).

Plaintiff Harjinder Singh has established that he served the summons and complaint on Sukhwinder Singh on May 29, 2009, pursuant to CPLR 308(2) and that this defendant failed to serve a timely answer. Sukhwinder Singh has failed to make a motion to vacate his default, or otherwise demonstrate that he has both a reasonable excuse and the existence of a potentially meritorious defense (see, Tadco Constr. Corp. v Allstate Ins. Co., 73 AD3d 1022 [2nd Dept. 2010]; Sime v Ludhar, 37 AD3d 817 [2nd Dept. 2007]; Professional Bookkeeper, Inc. v L & L NY Food Corp., 18 AD3d 851 [2nd Dept. 2005]; Fekete v Camp Skwere, 16 AD3d 544 [2nd Dept. 2005]). Defendant Sukhwinder Singh, therefore, is in default in answering the complaint.

Plaintiff Harjinder Singh, in support of the within motion, has submitted a copy of the summons and complaint and defendant Sovereign Bank's answer. Plaintiff has also submitted a copy of Justice Brathwaite Nelson's order and memorandum decision. An examination of the Court's file in the action commenced under Index No. 2255/2007 reveals that the plaintiff therein, Harjinder Singh, did not enter a judgment in compliance with the court's order of December 21, 2007, and did not submit a judgment in compliance with the memorandum decision of March 2, 2009. Therefore, contrary to Harjinder's Singh's present claims, no judgments have been entered against Sukhwinder Singh in that action. This Court makes no determination as to whether Harjinder Singh's motions and claims under Index No. 2255/2007 have been deemed abandoned, pursuant to 22 NYCRR section 202.48.

Thus, the only judgment entered in favor of Harjinder Singh against Sukhwinder Singh is the Civil Court judgment of November 27, 2002. Harjinder Singh, in his complaint and affidavit does not state what efforts, if any, have been made to enforce this judgment. Sukhwinder Singh, however, has acted to enforce the Civil Court judgment dated May 12, 2002, that he obtained against Harjinder Singh, by serving Sovereign Bank with the information subpoena and restraining notice, dated November 8, 2006, in connection with that judgment. This restraining notice is effective for the entire life of the judgment, or until it has been satisfied or vacated (CPLR 5222[b]). The life of a judgment is 20 years, and a creditor need serve only one notice on the debtor (CPLR 211[b]). [*6]

As permitted by CPLR 5222(b), the restraining notice served on Sovereign Bank applies to all funds which Harjinder Singh is "known or believed to have an interest then in or thereafter coming into the possession or custody of" Sovereign Bank. Sovereign Bank, upon receipt of the restraining notice, placed a hold on all of Harjinder Singh's bank accounts, including the two joint accounts, and the safe deposit bank. Sovereign Bank is required to apply the restraint to such funds until the withheld money "belonging or owed to" Sukhwinder Singh is "equal to twice the amount due on the judgment." After that event, "the restraining notice is not effective as to other property or money" (CPLR 5222[b]).

Sovereign Bank was served with a levy from the Marshal's office, dated December 20, 2006, which it received on January 5, 2007. On February 5, 2007, the bank sent a check to the Marshal's office, in the sum of $1,442.97. The funds for this check came from two individual accounts that were solely in the name of Harjinder Singh's. The Marshal's notice of levy expired on April 5, 2007. No evidence exists that Sukhwinder Singh obtained a court order extending the levy, moved for an order directing the judgment debtor to turn over the funds or property pursuant to CPLR 5225, or commenced a special proceeding against a garnishee pursuant to CPLR 5227.

In view of the fact that Sukhwinder Singh did not move for a turnover of the remaining funds, and since no determination was made with respect to Harjinder Singh's property interest in the joint accounts and the safe deposit box, Sovereign Bank's continued restraint of the entire amount in these accounts is proper. The Court notes that plaintiff does not claim that the funds and property held in the joint accounts and safe deposit box are subject to any statutory exemption.

Plaintiff's sole allegation asserts that the judgment obtained by defendant Sukhwinder Singh has been offset, in whole or part, by the judgment he obtained against defendant Sukhwinder Singh, and, therefore, the restraint placed on the joint accounts and safe deposit box should be vacated. However, neither the statutory provisions of CPLR Article 52 nor any reported cases, permit such relief. Plaintiff Harjinder Singh, thus, has not established that he is entitled to a default judgment against Sukhwinder Singh.

Sovereign Bank interposed the affirmative defense of collateral estoppel in its answer, and, therefore, its cross motion to dismiss the complaint on this ground is proper. In order to invoke the doctrine of collateral estoppel, two well-settled requirements must be satisfied: "First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination" (Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]). The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result (see, Buechel v Bain, 97 NY2d 295 [2001]; Altegra Credit Co. v Tin Chu, 29 AD3d 718 [2nd Dept. 2006]).

In the action commenced under Index No. 2255/2007, Harjinder Singh, the plaintiff [*7]therein, moved for an order against Sukhwinder Singh and Sovereign Bank, directing the hold placed on the joint accounts and safe deposit box be removed, on the grounds that the judgment he had obtained in that action entitled him to an offset against the judgment obtained by Sukhwinder Singh in the Civil Court. Justice Brathwaite Nelson, in her order of March 3, 2009, denied that motion, as Harjinder Singh had failed to establish that this proposition was supported by any relevant statutes or case law. In view of the fact that Harjinder Singh previously litigated this issue, and Justice Brathwaite Nelson rejected this claim as it lacked any legal basis, Harjinder Singh is precluded from relitigating this issue here.

To the extent that plaintiff also asserts here that the holds on the joint accounts and safe deposit bank should be vacated, based upon the judgment he obtained in Civil Court, this claimed offset is rejected, as it lacks a legal basis. A party who obtains and enters a judgment is entitled to seek to enforce that judgment pursuant to CPLR Article 52.

Although plaintiff, in opposition to the cross motion, asserts in an affidavit that the funds held in the joint account, and safe deposit box do not belong to him, the complaint does not allege a cause of action based upon such non-ownership. Plaintiff's bare assertion in this regard is insufficient to establish that he has no ownership interest in these funds and property. The Court further notes that plaintiff's wife is not a party to this action, and she has not submitted an affidavit establishing her sole ownership of these funds and property.

Finally, in view of the fact that the Bankruptcy Court has expressly declined to reopen the proceedings filed by Sukhwinder Singh, plaintiff Harjinder Singh's claims pertaining to the bankruptcy court proceedings are rejected.

Accordingly, plaintiff Harjinder Singh's motion is denied. Defendant Sovereign Bank's cross motion to dismiss the complaint is granted. That branch of the cross motion by Sovereign Bank seeking costs and sanctions, pursuant to 22 NYCRR sections 130-1.2 and 130-2.2, is denied.

In view of the fact that plaintiff Harjinder Singh's sole claim against Sukhwinder Singh lacks a legal basis, the complaint is dismissed as to this defendant.

The dismissal of the complaint as to all defendants is without prejudice to the commencement of a special proceeding pursuant to CPLR 5239.

Dated: November 10, 2010

J.S.C.

Footnotes

Footnote 1: The Court has concealed the actual bank account numbers and the safe deposit box number in the interest of the litigants' privacy.