Opinion
February 13, 1968
Glasser, Baily Litwack for petitioner.
Mullooly, Jeffrey Rooney for plaintiff.
Morris H. Schneider, County Attorney, for Sheriff of Nassau County.
The application of National Instalment Corporation (claimant) for an order requiring the Sheriff to turn over the proceeds of an execution sale of real property is in all respects denied.
County National Bank, plaintiff herein, recovered in this court a judgment against the defendants (including the debtor Saltus) which was docketed in the Nassau County Clerk's office on May 16, 1966. The claimant obtained its judgment in the Civil Court of the City of New York on September 22, 1965 and had a transcript docketed in this county on December 19, 1967. The sale was effected under an execution filed by plaintiff. Claimant also filed an execution subsequently.
This proceeding arises from the claimant's contention that it has priority based upon the date of recovery of its judgment, invoking CPLR 5236 (subd. [g]), requiring distribution of the proceeds of a sale of real property to be made "to the judgment creditors who have delivered executions against the judgment debtor to the sheriff before the sale, which executions have not been returned, in the order in which their judgments have priority" (emphasis supplied).
However, the word "priority" must be related to the discussion of priorities and liens of judgments upon real property contained in CPLR 5203. This establishes that no transfer of a judgment debtor's interest in real property is effective against his judgment creditor either from the time of the docketing of the judgment with the Clerk of the county in which the property is located (or from the time of the filing with that Clerk of a notice of levy pursuant to an execution until the execution is returned) except a transfer or the payment of the proceeds of a judicial sale in satisfaction of a judgment previously so docketed (or of a judgment where notice of levy pursuant to an execution thereon was previously so filed).
It is from the moment of the docketing of a judgment in the county which is the situs of the real property that legal rights in the real estate of the debtor attach ( Hulbert v. Hulbert, 216 N.Y. 430, 440; CPLR 5203). Plaintiff's rights attached May 16, 1966; claimant's on December 19, 1967. This is the order of the priorities as between plaintiff and claimant.