Opinion
109771/09.
July 26, 2011.
DECISION/ORDER
Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this motion:
Papers Numbered
Pltf's n/m [5225(a)] w/RMK affirm, MLH affid, exhs ................................ 1 Upon the foregoing papers, the decision and order of the court is as follows:Plaintiff, Michael L. Hirtenstein ("Hirtenstein"), brings this motion pursuant to CPLR § 5225(a) to obtain certain personal property from defendant, Sean Largotta ("Largotta"), in order to enforce a default judgment entered in plaintiff's favor in this action on March 12, 2010 by this court (the "Judgment").
Plaintiff personally served defendant on May 20, 2011 by delivering a copy of the notice of motion and accompanying papers to "Jane Doe," a person of suitable age and discretion, at defendant's actual place of business. CPLR §§ 5225(a), 308(2). Plaintiff followed this service by mailing a copy of the papers to the same address on May 23, 2011. CPLR §§ 5225(a), 308(2).
Background
Hirtenstein obtained a the Judgment against Largotta in the amount of $159,172.34, which included interest and costs and disbursements. Hirtenstein now alleges that $79,172.34, with interest from March 12, 2010, remains unpaid.
Hirtenstein alleges that he and Largotta each have a 50% ownership interest in 49 East Houston LLC, a limited liability company of which they are the only members. Hirtenstein also alleges, upon information and belief, that Largotta has ownership interests in The Lion Restaurant Group, LLC, d/b/a "The Lion Restaurant", and Dorsia 8:30 LLC, d/b/a "Charles Restaurant", both limited liability companies. Hirtenstein moves the Court for an order directing Largotta to turn over to the Sheriff "documents representing his interests" in each of the companies and "to execute and to deliver to the Sheriff of New York County all documents necessary to effectuate this turnover of his interests in those three limited liability companies."
Discussion
Although defendant was properly served pursuant to CPLR §§ 5225(a) and 308(2), defendant has neither appeared nor answered in this action and the motion is submitted on default. Plaintiff's motion is supported by Hirtenstein's personal affidavit.
Pursuant to CPLR § 5225(a), the "court shall order" a judgment debtor to pay money, or if insufficient to deliver personal property, in an amount that satisfies a judgment against him upon a creditor's motion and notice to the debtor. The creditor is required to show that the "judgment debtor is in possession or custody of the money or other personal property in which he has an interest." CPLR § 5225(a). The judgment debtor will not be required "to deliver property that has not clearly been shown to be in the judgment debtor's possession and control[]"; therefore, "the judgment creditor must . . . [be] armed with a convincing array of evidence[]", which CPLR §§ 5223 and 5224 may be useful in retrieving. David D. Siegel, McKinney's Consolidated Laws of New York Annotated Book 7B, C5225:1 (1997). Furthermore, "[t]he court may order any person to execute and deliver any document necessary to effect payment or delivery." CPLR § 5225(c).
Additionally, while the member of a limited liability company does not have interest in the company's specific property, the membership interest itself is personal property that the court can charge, with interest, to satisfy the creditor's judgment. Limited Liability Company Law §§ 601, 607(a).
Here, Hirtenstein has demonstrated that it has obtained a judgment against Largotta. Plaintiff contents that $79,172.34 is outstanding. In order to satisfy the Judgment, plaintiff is entitled to documents representing defendant's interests in 49 East Houston LLC, The Lion Restaurant Group, LLC, d/b/a "The Lion Restaurant", and Dorsia 8:30 LLC, d/b/a "Charles Restaurant" so that it may effectuate the turnover of defendant's property and ultimately enforce its Judgment. Therefore, plaintiff's motion is GRANTED.
Conclusion
In accordance herewith, it is hereby: ORDERED that plaintiff's, Michael L. Hirtenstein's, motion against defendant, Sean Largotta, is GRANTED and Largotta is directed to deliver documents representing his interests in 49 East Houston LLC, The Lion Restaurant Group, LLC, d/b/a "The Lion Restaurant", and Dorsia 8:30 LLC, d/b/a "Charles Restaurant" so that plaintiff may effectuate the turnover of defendant's property and ultimately enforce its Judgment; and it is further
ORDERED that requested relief not expressly addressed herein has nonetheless been considered by the court and is hereby denied; and it is further
ORDERED that this shall constitute the decision and order of the Court.