Opinion
6283-08
10-15-2020
YORK ANESTHESIOLOGISTS, PLLC, Plaintiff, v. Keturah Hamilton WHITE, Defendant.
Smith Carroad Levy Wan & Parikh, Attorneys for Plaintiff, 5036 Jerricho Turnpike, Suite 201, Commack, New York 11725 Keturah Hamilton White, Defendant pro se
Smith Carroad Levy Wan & Parikh, Attorneys for Plaintiff, 5036 Jerricho Turnpike, Suite 201, Commack, New York 11725
Keturah Hamilton White, Defendant pro se
Lyndon D. Williams, J.
A default judgment was entered against defendant Keturah Hamilton White, judgment debtor, on February 9, 2009 in the amount of $1,234.92. Plaintiff asserts that, at a rate of 9% statutory interest, the judgment amount is currently $2,524.78. See Exhibit "A" attached to Plaintiff's attorney's affirmation. The Plaintiff, judgment creditor, now brings a motion pursuant to CPLR § 5240 and CPLR § 5222-a(d) objecting to Defendant's Exemption Claim Form.
Plaintiff served an information subpoena on Chase Bank. A copy of the subpoena was not attached to Plaintiff's motion papers, nor did the motion papers state whether Plaintiff served the Exemption Claim Form on the bank as required by CPLR § 5222-a(b)(1) and (b)(4). Plaintiff alleges that, in response to the subpoena, Chase Bank identified savings account ending in number 6867 as belonging to the Defendant. A copy of a letter dated August 26, 2020 from Chase Bank, attached to Plaintiff's motion as Exhibit "B", associated account 6867 with Keturah V. Lindsay. Chase Bank indicated that the amount of hold on the account is $2,469.84 and present balance of $1,763.28. The bank restrained $1,753.28, with amount on deposit of $5,428.28. The source of funds or reason for the deposit is not stated in Chase Bank's response to the information subpoena. The motion papers do not state whether account 6867 was held at a branch of Chase bank in California or whether service of the restraining notice and information subpoena was made on the California branch.
Pursuant to CPLR § 5222-a(4)(b), Defendant completed and signed the Exemption Claim Form showing her name and address as Keturah Hamilton White, 12437 Milbank Street, Studio City, California 91604. The Exemption Claim Form states that "all funds in the account were deposited from California Economic Development Department (CAEDD) unemployment insurance awards". A copy of the Exemption Claim Form and the envelope in which it was delivered are attached to Plaintiff's motion as Exhibit "C". The copy of the postmarked envelope that included the exemption claim form indicates the form was mailed from Santa Clarita, California on September 11, 2020.
The pro se judgment debtor, who resides in Studio City, California, opposes Plaintiff's motion alleging, inter alia , that she was not served with the summons and complaint. As a result, Defendant did not appear in court in December 2008 and plaintiff obtained the February 9, 2009 default judgment against Defendant. Defendant states that due to COVID-19 and existing "stay at home" orders in California, her only source of income is California Employment Development Department (CA EDD) unemployment insurance benefits.
In her response to Plaintiff's motion, Defendant attached bank statements from Chase Bank and Bank of America showing several electronic deposits from CA EDD into account 6867 and a Bank of America account as well as online transfer of funds between these accounts, to support for her claim that all the money contained in the restrained Chase Bank account was derived from California unemployment benefits. Defendant also submitted a copy of a Notice of Pandemic Unemployment Assistance Award from the California Employment Development showing several periodic payments made to Keturah V. Lindsay between March 8, 2020 and September 25, 2020.
A judgment creditor may contest a judgment debtor's claim of exemption by moving for an order pursuant to CPLR § 5240. The judgment creditor must serve the banking institution and the judgment debtor with its motion papers within eight days after the date postmarked on the envelope containing the executed exemption claim form. CPLR § 5222-a(d).The envelope containing the executed exemption claim form attached to Plaintiff's motion papers was postmarked September 11, 2020. The affidavit of service attached to Plaintiff's motion reveals that service was made on the judgment debtor by regular mail to the address on the exemption form on September 16, 2020. The return date on the motion was October 9, 2020. Therefore, the motion is timely as to the judgement debtor.
However, CPLR § 5222-a(d) also requires the judgment creditor to serve the banking institution with the motion papers within eight days after the date postmarked on the envelope containing the executed exemption claim form or the date of personal delivery of the executed exemption claim form to the banking institution. Plaintiff did not allege or offer any proof with its motion papers filed with the Court that Plaintiff served the motion on Chase Bank.
Plaintiff's motion for an Order pursuant to CPLR § 5222-a(d) & (e) and CPLR § 5240 is denied on the ground that Plaintiff did not serve its motion papers on the banking institution. CPLR § 5222-a(d) requires a motion based on an objection to a claim of exemption to be served on both the banking institution and judgment debtor "within eight days after the date postmarked on the envelope containing the executed exemption claim form or the date of personal delivery of the executed exemption claim form to the banking institution." The Court lacks jurisdiction to hear the motion. See Midland Funding LLC, v. Digonis , 25 Misc 3d 935 (Nassau Dist. Ct. 2009).
This constitutes the Court's Decision and Order.
The Court considered the following papers on this motion: Notice of Motion dated September 15, 2020, Affirmation in Support dated September 15, 2020, Exhibits A-C, Affidavit of Service on judgment debtor affirmed September 16, 2020; Defendant's Reply Affidavit dated October 1, 2020, Defendant's Notice of Pandemic Unemployment Assistance Award Exhibit.