Colon v. 108 W. 95th St. Hous. Dev. Fund Corp.

Full title: JULIO COLON and JENNIFER GARCIA, Judgment-Petitioner, v. 108 WEST 95th…

Court: Supreme Court, New York County

Date published: Jan 8, 2024

2024 N.Y. Slip Op. 30084 (N.Y. Sup. Ct. 2024)

Opinion

Index No. 153236/2023 Motion Seq. No. 001

01-08-2024

JULIO COLON and JENNIFER GARCIA, Judgment-Petitioner, v. 108 WEST 95th STREET HOUSING DEVELOPMENT FUND CORPORATION, Respondent, LUIS RIVERA. JR and LUIS RIVERA III, Judgment Debtors.

Shahabuddeen Abid Ally, Judge

Unpublished Opinion

MOTION DATE 06/26/2023

PRESENT: HON. SHAHABUDDEEN ABID ALLY, Justice

DECISION + ORDER ON MOTION

Shahabuddeen Abid Ally, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1-13 were read on this motion to/for TURNOVER PROCEEDING.

In this judgment enforcement proceeding, petitioners move for an order: (1) pursuant to CPLR § 5225(a), directing judgment debtors to pay to petitioner money sufficient to satisfy outstanding judgments or, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff; (2) pursuant to CPLR § 5225(b), in the event that judgment debtors refuse to tender the shares in satisfaction of the judgment amounts due, directing that the 250 shares of respondent 108 West 95^th Street Housing Development Fund Corporation ("108 West 95^th"), a cooperative apartment building, be turned over to the Sheriff; or (3) in the alternative, respondents 108 West 95^lh be directed that the shares belonging to judgment debtor Luis Rivera, Jr. be issued in petitioners" names. Judgment debtor Luis Rivera III has filed opposition, but neither respondent nor judgment debtor Luis Rivera, Jr. have filed opposition nor otherwise appeared in this proceeding. Upon the above cited papers, the petition is denied.

In a prior proceeding,¹ petitioners brought an action against judgment debtors for fraud, alleging that Luis Rivera, Jr. fraudulently contracted with petitioners for the sale and purchase of the cooperative apartment located at 108 West 95^th Street, Apt. 6FW, New York, NY 10025 (the "Apartment"). Petitioners further alleged in that action that as a result of Luis Rivera, Jr.'s representations, petitioners invested considerable sums of money in the form of contract deposit and in renovations to the Apartment. Luis Rivera III answered, and eventually entered into a stipulation of settlement with petitioners whereby Luis Rivera III agreed to pay the sum of $45,000 to petitioners in settlement of claims against him. Luis Rivera, Jr. defaulted and petitioners obtained a judgment against him in the amount of $295,354.04. Petitioners aver that Luis Rivera, Jr. has made no payments toward the outstanding judgment and owes $498,306.73 as of the filing date of this petition. Luis Rivera III has paid $30,684.11 of the settlement amount as of the filing date of this petition.

1 Colon and Garcia v Rivera and Rivera, Index No. 153683/2014 (Sup. Ct., New York County 2014).

Judgment debtors own 250 shares of 108 West 95^th. representing ownership interest in the Apartment. From the time of the underlying action through the filing of this petition, the Apartment has been occupied by Luis Rivera III and his wife. Though there has been no documentation provided that sets forth specific terms of the judgment debtors' co-ownership, both are listed together on the stock certificate representing the 250 shares. Luis Rivera III maintains that Luis Rivera, Jr. no longer resides in New York and has relinquished possession of the Apartment.

Petitioners now seek enforcement of the judgment by way of delivery to them of Luis Rivera, Jr.'s interest in the 250 shares. Petitioners contend that this interest is only asset upon which the judgment against Luis Rivera, Jr. can be satisfied. Luis Rivera III opposes delivery of the shares, arguing that in light of his anticipated satisfaction of his portion of the judgment, permitting his ouster from the Apartment would be inequitable. In reply, petitioners assert that they do not seek to satisfy any part of the judgment from Luis Rivera Ill's portion of the shares or to disturb his occupancy and co-ownership of the Apartment.

Discussion

CPLR § 5225(a) provides, in relevant part:

Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession or custody of money or other personal property in which he has an interest, the court shall order that the judgment debtor pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff.

Pursuant to CPLR § 5225(c), a court is authorized to direct persons or entities to "execute and deliver" documents sufficient to effectuate delivery of such property. Upon its receipt of a judgment debtor's personal property by the designated sheriff, personal property delivered by a turnover order shall be sold at public auction according to the procedures set forth in the CPLR (CPLR § 5233[a]).

In the context of a judgment enforcement proceeding, shares in a cooperative apartment are considered personal property and are therefore subject to delivery pursuant to CPLR § 5225 (State Tax Commissioner v Shor, 43 N.Y.2d 151 [1977]).

Here, it is undisputed that petitioners are judgment creditors and are owed outstanding payments from both debtors. Notably, petitioners do not seek sale of Luis Rivera, Jr.'s interest in the shares. Petitioners also aver that they do not at this time seek to enforce the judgment against Luis Rivera III and do not seek to disturb his and his wife's possession of the Apartment. However, with regard to personal property, CPLR § 5225(a) authorizes a court only to direct delivery of the personal property to a designated sheriff for sale or other distribution sufficient to satisfy the judgment (CPLR § 5233). This Court therefore lacks authority to compel delivery of the shares such that it would have no possibility of disturbing the Luis Rivera Ill's co-ownership of the shares or occupancy of the unit.

Accordingly, it is hereby:

ORDERED and ADJUDGED that the petition is denied and this proceeding is dismissed.

This constitutes the decision and order of the Court.