878 Educ., LLC v Atrium Holdings, LLC

[*1] 878 Educ., LLC v Atrium Holdings, LLC 2013 NY Slip Op 51183(U) Decided on July 19, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III., P.J., Schoenfeld, Torres, JJ
570672/12.

878 Education, LLC., Plaintiff-Respondent, - -

against

Atrium Holdings, LLC., Defendant-Appellant.

Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated January 19, 2012, which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint, and (2) a judgment (same court and Judge), entered March 21, 2012, in favor of plaintiff in the principal sum of $10,052.01.

Per Curiam.

Judgment (Arlene P. Bluth, J.), entered March 21, 2012, affirmed, with $25 costs. Appeal from order (Arlene P. Bluth), dated January 19, 2012, dismissed, without costs, as subsumed in the appeal from the judgment.

We agree, essentially for reasons stated by the motion court, that as between these parties it is the defendant-judgment creditor who must bear responsibility for payment of the Marshal's poundage fees under controlling case law (see Cabrera v Hirth, 87 AD3d 844 [2011 1st Dept]; cf. DePasquale v Estate of DePasquale, 89 AD3d 672, 673-674 [2011 2d Dept]). "It has long been customary that where a [Marshal] levies against a [judgment debtor's] property and the matter is thereafter settled, the judgment creditor is liable to the [Marshal] for the payment of poundage fees as the party who invoked the [Marshal's] services" (Cabrera v Hirth, 87 AD3d at 849 [citation omitted]). Nor can the terms of the parties' post-levy settlement agreement fairly be read to shift responsibility for payment of the poundage fees to the plaintiff-judgment debtor, or to raise a triable issue with respect thereto.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 19, 2013