Teller v Hernandez

[*1] Teller v Hernandez 2009 NY Slip Op 51764(U) [24 Misc 3d 143(A)] Decided on August 14, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570446/08

Jonathan Teller, Plaintiff-Respondent,

against

Merquiadez Hernandez, Defendant-Appellant.

Defendant appeals from so much of an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Saliann Scarpulla, J.), dated January 14, 2008, as limited his recovery of monies improperly levied from his bank account in satisfaction of a prior judgment to the sum of $931.85.

Per Curiam.

Order (Saliann Scarpulla, J.), dated January 14, 2008, modified to increase defendant's recovery to $1,559.45, and as modified, order affirmed, without costs.

Defendant's post-judgment submission established that the monies levied from his bank account by plaintiff judgment-creditor consisted solely of Social Security disability payments, monies which are exempt from levy (see 42 USC § 407[a]; CPLR 5222[e]). Therefore, Civil Court properly directed plaintiff to make restitution to defendant. We modify by directing plaintiff to refund the full amount improperly levied (see West Side Natl. Bank of Chicago v Warsaw Discount Bank, 204 App Div 4 [1922]). We note that plaintiff's conclusory claim that he only received $931.85 from the levy was not substantiated by the record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 14, 2009