Opinion
2011-11-1
Daniel C. DePASQUALE, plaintiff-respondent,v.ESTATE OF Joseph C. DePASQUALE, et al., appellants;Bruce Kemp, nonparty-respondent.
Simon Kogan, Staten Island, N.Y., for appellants.Schwartz & Silverstein, LLP, New City, N.Y. (Mark D. Lefkowitz of counsel), for plaintiff-respondent.Kenneth D. Litwack, P.C., Bayside, N.Y., for nonparty-respondent.
Simon Kogan, Staten Island, N.Y., for appellants.Schwartz & Silverstein, LLP, New City, N.Y. (Mark D. Lefkowitz of counsel), for plaintiff-respondent.Kenneth D. Litwack, P.C., Bayside, N.Y., for nonparty-respondent.
In an action, inter alia, to recover damages for breach of contract, in which a judgment was entered on July 20, 2009, in favor of the plaintiff and against the defendants in the principal sum of $2,001,270, the defendants appeal from so much of (1) an order of the Supreme Court, Queens County (Kitzes, J.), dated April 2, 2010, as granted the motion of the nonparty Bruce Kemp pursuant to CPLR 8012(b) to direct them to pay poundage fees, and (2) an order of the same court dated May 20, 2010, as denied that branch of their motion which was to vacate a stipulation of the parties insofar as it related to the payment of poundage fees.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
The parties entered into a settlement agreement at trial. After the defendants failed to timely make payment in compliance with the settlement agreement, a judgment was entered against the defendants in the sum of $2,001,270. The plaintiff's attorney then issued an execution to the City Marshal Bruce Kemp (hereinafter the Marshal). After a levy upon about $95,000 of the defendants' money, the parties settled. The defendants sent payment for the full amount of the judgment directly to the plaintiff. The poundage fees were not included in the payment. Thereafter, the Marshal moved pursuant to CPLR 8012(b) to direct the defendants to pay his poundage fees. The Supreme Court determined that the Marshal was entitled to poundage fees and that such fees should be paid by the defendants.
“ ‘Poundage is a fee awarded to the Sheriff in the nature of a percentage commission upon moneys recovered pursuant to a levy or execution of attachment’ ” ( Alvarez v. Brooklyn Hosp.-Caledonian Hosp., 255 A.D.2d 278, 279–280, 679 N.Y.S.2d 408, quoting Southern Indus. v. Jeremias, 66 A.D.2d 178, 186, 411 N.Y.S.2d 945). A sheriff's right to collect poundage fees is wholly statutory ( see CPLR 8012[b]; Personeni v. Aquino, 6 N.Y.2d 35, 37, 187 N.Y.S.2d 764, 159 N.E.2d 559). Moreover, the statute must be strictly construed ( see Famous Pizza v. Metss Kosher Pizza, 119 A.D.2d 721, 501 N.Y.S.2d 135). “Where a settlement is made after a levy by virtue of service of an execution, the sheriff is entitled to poundage upon the judgment or settlement amount, whichever is less” (CPLR 8012[b][2], see Solow Mgt. Corp. v. Tanger, 10 N.Y.3d 326, 330, 858 N.Y.S.2d 63, 887 N.E.2d 1121; Kurtzman v. Bergstol, 62 A.D.3d 757, 758, 878 N.Y.S.2d 768). A marshal's “powers, duties and liabilities as” to the taking and restitution of property is the same as that of a sheriff (N.Y. City Civ. Ct. Act § 1609[1] ).
Here, the Supreme Court properly determined that the defendants are liable for the poundage fees. Generally, the judgment debtor is responsible for the payment of poundage fees ( see Southern Indus. v. Jeremias, 66 A.D.2d at 186, 411 N.Y.S.2d 945; see also 9A Carmody–Wait 2d § 64:209). In addition, courts have held that a party that affirmatively interferes with the collection process will be
liable for the poundage fees ( see Personeni v. Aquino, 6 N.Y.2d at 38, 187 N.Y.S.2d 764, 159 N.E.2d 559; Martin v. Consolidated Edison Co. of N.Y., 177 A.D.2d 548, 576 N.Y.S.2d 290, affg. 146 Misc.2d 756, 552 N.Y.S.2d 827). In the instant case, the defendants are liable for the poundage fees because their failure to abide by the initial settlement at trial was the sole cause of the judgment being entered and, consequently, the Marshal's subsequent involvement with the execution of that judgment ( see Norberto & Sons v. Burman, 160 A.D.2d 787, 555 N.Y.S.2d 614; Red Cheek v. Crown Confections, 129 A.D.2d 787, 788, 514 N.Y.S.2d 777), and they repeatedly interfered with the enforcement of that judgment ( see Martin v. Consolidated Edison Co. of N.Y., 177 A.D.2d at 548, 576 N.Y.S.2d 290).
The defendants' remaining contentions are without merit.
ANGIOLILLO, J.P., FLORIO, LEVENTHAL and COHEN, JJ., concur.