Barretta Realty Skyline v Bank of Am.

[*1] Barretta Realty Skyline v Bank of Am. 2010 NY Slip Op 51001(U) [27 Misc 3d 142(A)] Decided on June 4, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2009-2029 N C.

Barretta Realty Skyline Div. of Real Property Technologies, LLC, Appellant,

against

Bank of America, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Gary F. Knobel, J.), entered July 27, 2009. The order denied a petition seeking the turnover of funds belonging to a judgment debtor.

ORDERED that the order is affirmed without costs.

A judgment in favor of Barretta Realty Skyline div. of Real Property Technologies, LLC (hereinafter the judgment creditor) was entered on December 13, 2008 against Custom Tile & Escrow, Inc. (hereinafter the judgment debtor) in the principal sum of $4,646.73. By notice of petition and petition dated February 3, 2009, the judgment creditor commenced the instant special proceeding against the Bank of America seeking the turnover of funds held by the bank in a checking account in the name of the judgment debtor in satisfaction of the judgment entered against the judgment debtor.

Bank of America's vice president averred in her response to the petition that, on the date the restraining notice was served, the account maintained in the name of the judgment debtor was overdrawn and that the bank maintained no other accounts that could be utilized in satisfaction of the judgment against the judgment debtor. By order entered July 27, 2009, the District Court denied the petition.

We agree with the District Court's determination that petitioner failed to establish that, at the time of service of the restraining notice, Bank of America was in possession of any funds maintained in an account of the judgment debtor (see CPLR 5225 [b]).
Petitioner's remaining contentions are either without merit or are unpreserved for appellate review. Accordingly, the order of the District Court is affirmed. We note that a special proceeding should terminate in a judgment (CPLR 411).

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 04, 2010