Posso v Fernandez

[*1] Posso v Fernandez 2006 NY Slip Op 50417(U) [11 Misc 3d 1067(A)] Decided on February 10, 2006 Supreme Court, Suffolk County Pines, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2006
Supreme Court, Suffolk County

Luis G. Posso and MARIA E. PALACIO-POSSO, Plaintiffs,

against

William A. Fernandez and WILLIAM A. FERNANDEZ & ASSOCIATES, Defendants.



23172-2004



Attorney for Plaintiffs:

Brian P. Neary, Esq.

50 Elm Street

Huntington, New York 11743

Attorney for Defendant:

William A. Fernandez and William A. Fernandez & Associates, Pro Se

1820-B 5th Avenue

Bay Shore, New York 11706

Emily Pines, J.

ORDERED, that the motion by Plaintiffs for an Order pursuant to CPLR §5226 directing the [*2]Defendants to make installment payments in the sum of $500.00 per week is granted with one bill of costs.

By Judgment (BURKE, J.) dated May 4, 2005, Plaintiffs were awarded $3,172,437.22 against Defendants for legal malpractice. The Judgment was awarded upon default in this action by Defendants, who, to date, have not sought to open the default. Plaintiffs now move for an Order, pursuant to CPLR §5226, directing Defendants to make installment payments in the sum of $500.00 per week.

On November 15, 2005, Plaintiffs' counsel conducted an examination before trial of Defendant, William A. Fernandez. In sum, the deposition testimony revealed that Mr. Fernandez, although a graduate of Hofstra Law School who passed the New York State Bar examination, never was admitted to practice law in the State of New York. Incredulously, Mr. Fernandez' testimony reveals that he is actively practicing law without a license, has a flourishing immigration law practice and refers other cases to lawyers with whom he has relationships. He admitted getting paid almost exclusively in cash and paying all his bills in cash. As of the date of the deposition, he had not filed his 2004 income tax return, nor requested an extension to file from the Internal Revenue Service. Mr. Fernandez reported gross income of $267,000 in 2003, but net income of only $22,321. Mr. Fernandez testified that he also prepares income tax returns for his clients. He stated that he does not have any personal or business checking or savings accounts and testified to total monthly expenses of approximately $4,000.00. Mr. Fernandez' testimony revealed that he had approximately 500 active immigration cases, and several judgments against him.

In opposition, Defendant states that he does not have sufficient income to pay $500 per week, that he has expenses for running his "business" and that he is competing with "Notarios" who charge less for their services. He admits that he is not admitted to the New York State Bar and that cannot be admitted now because more than three (3) years has elapsed since he passed the examination.

CPLR §5226 states: Where it is shown that the judgment debtor is receiving or will receive money from any source, or is attempting to impede the judgment creditor by rendering services without adequate compensation, the court shall order that the judgment debtor make specified installment payments to the judgment creditor... In fixing the amount of the [*3]payments, the court shall take into consideration the reasonable requirements of the judgment debtor and his dependents, any payments required to be made by him or deducted from the money he would otherwise receive in satisfaction of other judgments and wage assignments, the amount due on the judgment, and the amount being or to be received, or, if the judgment debtor is attempting to impede the judgment creditor by rendering services without adequate compensation, the reasonable value of the services rendered.

In the case sub judice, the Court has awarded Plaintiffs a substantial money judgment against Defendants, who admitted to the unlicensed practice of law. Defendant further admits to a practice with a case load of approximately 500 clients, that he is paid primarily cash, pays his bills in cash to avoid creditors, does not have a checking or savings account and owns no real estate. Defendant's claimed net income of only $22,000 belies credulity, especially given the circumstances of this case, and the Court finds that defendant has ample income with which to pay the modest payment Plaintiffs seek. See, City of Albany Industrial Development Agency v. Garg, 268 AD2d 784, 704 N.Y.S.2d 154 (3d Dept. 2000); Barrett v. Stone, 236 AD2d 323, 653 N.Y.S.2d 598 (1st Dept. 1997); Nutmeg Financial Services, Inc., v. Richstone, 186 AD2d 58, 587 N.Y.S.2d 653 (1st Dept. 1992). It is therefore,

ORDERED, that pursuant to CPLR §5226, Defendants are directed to make installment payments to the Plaintiff in the amount of $500 per week, commencing March 1, 2006 until the May 4, 2005 Judgment is satisfied in full; and it is further

ORDERED, that Plaintiffs are awarded one bill of costs on this motion; and it is further

ORDERED, that pursuant to Judiciary Law §476-a, this file is being forwarded to the New York State Attorney General for the investigation into Defendant's admission of his unlicensed practice of law.