Barretta Realty Skyline Div. of Real Prop. Tech., LLC v Sunrise Land Servs. Corp.

[*1] Barretta Realty Skyline Div. of Real Prop. Tech., LLC v Sunrise Land Servs. Corp. 2014 NY Slip Op 51144(U) Decided on July 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2013-321 N C

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

against

Sunrise Land Services Corp. Also Known as SUNRISE LAND SERVICES AND SETTLEMENT CORP., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated January 15, 2013. The order granted defendant's motion, pursuant to CPLR 5015 (d), to direct plaintiff to make restitution to defendant of all sums it had received as a result of a levy that had been executed against defendant's bank accounts.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $14,997 for charges plaintiff allegedly accrued at defendant's request researching liens, liabilities and other matters affecting title to real property, the District Court, by order dated June 30, 2009, vacated a default judgment that had been entered on March 12, 2009, finding that defendant had established both a reasonable excuse for its default in answering and a meritorious defense. No appeal was taken from that order. Defendant served and filed a verified answer, which generally denied liability, and interposed a counterclaim. This court affirmed the District Court's denial of a motion by plaintiff for summary judgment (Barretta Realty Skyline Div. of Real Prop. Tech., LLC v Sunrise Land Servs. Corp., 31 Misc 3d 34 [2011]). Thereafter, following defendant's default in an appearance in District Court, the matter was referred to the inquest clerk of the District Court. Plaintiff's counsel submitted to the court a proposed judgment dated July 11, 2011, which was never signed by the clerk or entered. On September 9, 2011, plaintiff's counsel prepared a property execution, based on the vacated March 12, 2009 judgment, and, on September 12, 2011, Richard Capuano, a marshal of the City of New York, levied against defendant's bank accounts based on the September 9, 2011 property execution.

Defendant moved, in effect, to open its default and to restore the action to the trial calendar. The District Court granted defendant's motion, and this court affirmed the order (Barretta Realty Skyline Div. of Real Prop. Tech., LLC v. Sunrise Land Servs. Corp., 38 Misc 3d 132[A], 2012 NY Slip Op 52421[U] [2012]).

While the second appeal was pending, defendant moved, pursuant to CPLR 5015 (d), for an order compelling plaintiff to make restitution to it of the principal sum of $5,280.74, which was the amount that plaintiff had allegedly received as a result of the September 12, 2011 marshal's execution against defendant's bank accounts. Plaintiff opposed defendant's motion. The District Court granted the motion and directed plaintiff to make full restitution to defendant of all monies it had obtained pursuant to the vacated judgment. This appeal ensued.

Inasmuch as a marshal's authority to levy upon a defendant's property derives from article 52 of the CPLR, which provides for the enforcement of money judgments, and there was no money judgment in effect at the time that the marshal executed its levy against defendant's property, there was no lawful basis for such levy. The action of plaintiff's attorney in preparing [*2]and delivering to a marshal a property execution based upon a judgment that had been vacated was, we find, unauthorized and improper. Consequently, we conclude that the District Court did not improvidently exercise its discretion in granting defendant's application for restitution of its property.

We do not consider factual assertions raised by plaintiff for the first time on appeal which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2014