Matter of Smith v Ralph Dinapoli Landscaping, Inc.

Matter of Smith v Ralph Dinapoli Landscaping, Inc. 2013 NY Slip Op 07740 Decided on November 20, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
L. PRISCILLA HALL, JJ.
2012-05820
(Index No. 2364/12)

[*1]In the Matter of Gregory M. Smith, et al., petitioners- respondents,

v

Ralph Dinapoli Landscaping, Inc., doing business as Country Landscaping, appellant, et al., respondent.




Robert J. Zysk, Patchogue, N.Y., for appellant.
Edward C. Kesselman, New York, N.Y., for petitioners-
respondents.


DECISION & ORDER

In a proceeding pursuant to CPLR 5239, inter alia, to determine that certain real property is free and clear of a judgment lien asserted by Ralph Dinapoli Landscaping, Inc., doing business as Country Landscaping, the appeal is from an order of the Supreme Court, Suffolk County (Pines, J.), dated May 1, 2012, which granted the petition, vacated the execution of the judgment lien, and directed the Suffolk County Sheriff to release the real property from the levy.

ORDERED that the order is affirmed, with costs.

"CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor's real property in a county where the judgment has been docketed with the clerk of that county" (Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d 1052, 1053; see CPLR 5203[a]; Matter of Soressi v SWF, L.P., 81 AD3d 1143, 1144). Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry "under the surname of the judgment debtor . . . consist[ing] of . . . the name and last known address of [the] judgment debtor" (CPLR 5018[c][1][i]; see Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d at 1053). " Once docketed, a judgment becomes a lien on the real property of the debtor in that county'" (Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d at 1053, quoting Matter of Soressi v SWF, L.P., 81 AD3d at 1144). Here, the petitioners' submissions demonstrated that the judgment obtained by the appellant was not docketed under the correct surname of a title owner of the subject property. Therefore, no valid lien against the subject real property was created (see We Buy Now, LLC v Cadlerock Joint Venture, LP, 46 AD3d 549, 550; cf. H. R. & C. Co., Inc. v Smith, 242 NY 267; Matter of Accounts Retrievable Sys., LLC v Conway, 83 AD3d at 1053).

The appellant's remaining contentions are either without merit or not properly before this Court.

Accordingly, the Supreme Court properly granted the petition, vacated the execution of the judgment lien, and directed the Suffolk County Sheriff to release the property from the levy.
ENG, P.J., DICKERSON, CHAMBERS and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court