Wainrich Townhouses Homeowners Assn., Inc. v Celovsky
Annotate this CaseDecided on April 12, 2005
Civil Court of the City of New York, Richmond County
Wainrich Townhouses Homeowners Association, Inc. Claimant,
against
Irene Celovsky AND DANIEL CELOVSKY, Defendant.
60480 RSC 2004
CATHERINE M. DiDOMENICO, J.
On September 23, 2004, claimant Wainrich Townhouses HOA, Inc., commenced this small claims action against defendants Daniel Celovsky (now deceased) and Irene Celovsky, for non-payment of common charges. On October 28, 2004, defendant Irene Celovsky interposed a counterclaim against Claimant seeking recovery of $5,000.00 for "negligence of the def't , garnishing federal pension checks from checking acct" from a joint checking account she previously maintained with her husband. Claimant moves to dismiss this counterclaim on the grounds that it is barred by the applicable of statute of limitations; by the equitable doctrine of laches; and in the interest of justice. For the reasons set forth below, this motion is granted.
Claimant, through a prior property manager, brought an action (index no. 5217/99) against Ms. Celovsky which resulted in a judgment against her in the amount of $11,744.44. [*2]The judgment was entered on February 28, 2000. By letter dated April 10, 2000, Claimant sent Ms. Celovsky a Notice to Judgment Debtor which advised Ms. Celovsky that CPLR Sections 5239 and 5240 "provide a procedure for determination of claim to an exemption", and listed "public or private pensions" as among monies which may be exempt from execution (Ex. C). Ms. Celovsky wrote a note on this letter informing Claimant's counsel that the account being levied upon allegedly contained "pension checks" (Ex. C), which note she claims she mailed to him. Ms. Celovsky never commenced an action or proceeding to assert her claim that the monies allegedly constituted exempt property.
In a letter dated May 31, 2000, Citibank advised Ms. Celovsky that Claimant was in the process of executing upon her account in the amount of $2,688.83 (Exhibit B). By Remittance Statement dated October 30, 2000, the City Marshal remitted $2,544.39 from this account to Claimant's attorney in partial satisfaction of the judgment. On November 8, 2000, Claimant's attorney turned these funds over to Claimant.
The burden remained on Ms. Celovsky to commence an action or proceeding for the purpose of establishing her claim that the account sought to be levied upon, in fact, contained exempt property. See Balanoff v Niosi, 2004 WL 3171130, 2005 NY App Div. LEXIS 1359 (2d Dept); see also Zadar Constr & Woodworking v Charter Woodworking Corp., 158 AD2d 454 (2d Dept 1990). Having failed to commence a lawsuit prior to execution, Ms. Celovsky thereafter commenced this counterclaim sounding in conversion for return of the monies. See Guardian Loan Co. Inc v Early, 47 NY2d 515 (1979) (CPLR § 5240 allows a Court to deny or modify an enforcement procedure prior to the attachment, but provides no basis for such relief after enforcement).
CPLR §214(3) provides a three year statute of limitations period for an action to recover a chattel or for the negligent detaining of a chattel. See Vigilant Ins. Co. of America v Housing Auth. of City of El Paso Tex, 87 NY2d 36 (1995); see also Borges, Nassau, Stricken, Vellano, Enforcing Judgments and Collecting Debts in New York, §4:023, at 4-46 (1996) (an action to recover damages resulting from the taking of a chattel must be commenced within three years). Since Ms. Celovsky's account was levied upon sometime prior to October 30, 2000 (when the Sheriff turned over these funds to Claimant's attorney) the statute of limitations would have ran on October 30, 2003, at the very latest. Accordingly, Ms. Celovsky's counterclaim (which is deemed interposed on September 23, 2004, the date the small claims complaint against her was filed) is time barred because it was not commenced within the applicable three year limitations period. Furthermore, as the counterclaim does not arise out of the same transaction or occurrence as the main claim asserted against her, it may not be used as a defense or offset either. See CPLR 203(f); In Re David Nelson, M.D., 303 AD2d 499, 594 (2d Dept 2003) (counterclaim based on different factual allegations does not relate back to main claim and was untimely).
Accordingly, this counterclaim is dismissed as time barred. The Court, having granted the motion dismissing this counterclaim on the basis of statute of limitation, does not address the remaining legal arguments raised by Claimant for dismissal.
Claimant's action against defendant will be tried on May 5, 2005 in the Small Claims Part of this Court.
[*3]
The foregoing constitutes the Decision and Order of the Court.
Court Attorney to notify both sides of this Decision and Order.
CATHERINE M. DiDOMENICO
Judge, Civil Court
Dated: Staten Island, New York
April 12, 2005
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