VNB N.Y. Corp. v Lewitin

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VNB N.Y. Corp. v Lewitin 2017 NY Slip Op 32124(U) October 6, 2017 Supreme Court, New York County Docket Number: 650805/2011 Judge: Saliann Scarpulla Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/10/2017 10:00 AM 1] NYSCEF DOC. NO. 92 INDEX NO. 650805/2011 RECEIVED NYSCEF: 10/10/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 39 -------------------------------------------------------------------:0---------------X VNB NEW YORK COR~) INDEX NO. 650805/2011 Plaintiff, MOTION SEQ. NO. -v- ' 005 DECISION AND ORDER MARGUERITE LEWITIN, Defendant. -----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 59, 60, 61, 62, 63, 64, 65, 66, 67,68,69, 70, 71, 72, 73, 74, 75, 80, 81, 82,83, 84,85, 86, 87, 88, 89, 90, 91 were read on this application to/for Seizure/replevin ~~~~~~~~~~~~~~~~~~~~- HON. SALIANN SCARPULLA: On October 5, 2011, judgment was entered in favor of plaintiff/judgment creditor VNB New York Corp.'s ("VNB") 1, and against defendant/judgment debtor Marguerite Lewitin a/k/a Margot Lewitin ("Margot") in the amount of$249,816.99 in an action seeking payment on a promissory note. The judgment remains partially unsatisfied. 2 The 1 VNB merged with VNB New York LLC ("VNBNY"), making VNBNY the successor in interest. 2 VNBNY's vice president attests that $219,087.25 of the judgment, plus interest thereon from June 20, 2014, remains unsatisfied, but that calculation is not entirely accurate. Compare Exhibit C to VNBNY's Aff. (applying $94,000.00 as the "Appraised Value of [Margot's New Hampshire] Property" to the judgment), with Order to Show Cause Oral Argument Tr. 4:14-17 ("Court: [D]o you disagree that the 1099 you gave [Margot] ... valuated the [same] property at 115,000? ... Mr. Corona: I don't disagree with that."). 650805/2011 VNB NEW YORK CORP vs. LEWITIN, MARGUERITE Motion No. 005 1 of 4 Page 1 of4 [*FILED: NEW YORK COUNTY CLERK 10/10/2017 10:00 AM 2] NYSCEF DOC. NO. 92 INDEX NO. 650805/2011 RECEIVED NYSCEF: 10/10/2017 promissory note underlying the judgment was secured by artwork in Margot's possession created by her father, Landes Lewi tin, which now consists of 91 pieces of artwork ("Collateral"). VNB now moves pursuant to CPLR § 5225 for an order: (1) compelling Margot to deliver all artwork constituting the Collateral to either VNB or the City Marshal Martin Bienstock; and 2) directing the City Marshal to break open, enter and search for the Collateral at any place the Collateral may be reasonably located if it is not delivered. CPLR § 5225 (a) provides that ifthe judgment debtor is unable to pay the money to satisfy the judgment, "[u]pon motion of the judgment creditor, upon notice to the judgment debtor ... the court shall order that the judgment debtor deliver any other personal property [in the judgment debtor's possession] ... to a designated sheriff." It is undisputed that Margot has not satisfied the judgment in full. Margot also does not dispute VNB has a secured interest in the Collateral or that the Collateral is in. her possession. Instead, Margot disputes the accuracy ofVNB's appraisal of the Collateral, arguing that the Collateral "has no monetary value." Unfortunately, the Collateral's monetary value is not a bar to VNB's right to the Collateral as a secured lender and a judgment creditor. Accordingly, I grant VNB's request for the turnover of the Collateral, and apply the average of the appraisals submitted by the parties, i.e., $64,800.00, toward the 650805/2011 VNB NEW YORK CORP vs. LEWITIN, MARGUERITE Motion No. 005 2 of 4 Page 2 of4 [*FILED: NEW YORK COUNTY CLERK 10/10/2017 10:00 AM 3] NYSCEF DOC. NO. 92 INDEX NO. 650805/2011 RECEIVED NYSCEF: 10/10/2017 satisfaction of the October 5, 2011 judgment, unless the proceeds from any sale of the Collateral are higher.3 For the foregoing reasons, it is hereby ORDERED that plaintiffVNB New York Corp.'s motion for relief pursuant to CPLR § 5525 is granted in part and denied in part; and it is further ORDERED that plaintiffVNB New York Corp.'s motion is granted to the extent of directing defendant Marguerite Lewitin a/k/a Margot Lewitin to turn over to the New York County Sheriff, the 91 pieces of Landes Lewitin's artwork that are presently owned by defendant Marguerite Lewitin a/k/a Margot Lewitin and in her possession, within thirty (30) days of the date of this decision and order, and it is further ORDERED that VNB is directed to apply $64,800 toward satisfaction of the October 5, 2011 judgment obtained by plaintiffVNB New York Corp. against defendant Marguerite Lewitin a/k/a Margot Lewitin, unless the Collateral is sold for a higher amount, in which case such higher amount shall be applied toward satisfaction of the judgment; and it is further ORDERED that plaintiffVNB New York Corp.'s request that the Court direct the City Marshall to break open, enter and search for the 91 pieces of Landes Lewi tin's artwork owned by defendant Marguerite Lewitin a/k/a Margot Lewitin at any place it 3 Both parties have completed appraisals of the Collateral. VNB 's appraiser valued the Collateral at $34,800.00 and in reaching that valuation, applied a 60% blockage discount and deducted $5,000.00 in additional sales/marketing expenses. Margot's appraiser valued the Collateral at $94,800.00. 650805/2011 VNB NEW YORK CORP vs. LEWITIN, MARGUERITE Motion No. 005 3 of 4 Page 3 of4 [*FILED: NEW YORK COUNTY CLERK 10/10/2017 10:00 AM 4] NYSCEF DOC. NO. 92 INDEX NO. 650805/2011 RECEIVED NYSCEF: 10/10/2017 may be reasonably located is denied without prejudice to renewal if Margot Lewitin does not voluntarily comply with this order within the thirty (30) day period. This constitutes the decision and order of the Court. LA, J.S.C. CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 650805/2011 VNB NEW YORK CORP vs. LEWITIN, MARGUERITE Motion No. 005 4 of 4 D D OTHER REFERENCE Page 4 of 4

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