Opinion
February 25, 1964
Max Shenghit for plaintiff.
This is a motion for an order stated to be "pursuant to section 5227 of the Civil Practice Law and Rules" directing a bank as the third party to turn over to the judgment creditor part of the funds to the credit of judgment debtors in payment of the balance due on the judgment. Notice of the motion was given to both the judgment debtor and the bank by certified mail. 5227 of the Civil Practice Law and Rules distinctly specifies that a special proceeding for a direction to pay debts owed to judgment debtor shall be commenced against any person (a third party) shown to be indebted to judgment debtor, and that notice of such proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. A special proceeding (against the third party) can be commenced only by service in the same manner as a summons (CPLR 403, subd. [c]), although the court may grant an order to show cause to be served at a time and in a manner specified therein (CPLR 403, subd. [d]). This application must therefore be denied because of improper jurisdictional service with leave to renew upon proper service upon the third party.