Opinion
1616-93.
February 27, 2008.
The following papers having been read on this motion:
1, 2 3 4
Order to Show Cause, Affidavits, Exhibits .................. Answering Affidavits .......................................... Replying Affidavits ........................................... Briefs: Plaintiff's / Petitioner's ............................ Defendant's / Respondent's ....................................The plaintiff moves for an order pursuant to CPLR 5203 extending the lien of judgment docketed in the underlying action in the Office of the Nassau County Clerk on July 29, 1997, upon real property for an additional period of 180 days from January 29, 2008, so as to be effective after the expiration of 10 years from the filing of the judgment roll in the underlying action upon the ground the time necessary to complete advertisement and sale of the real property subject to that judgment pursuant to an execution delivered to the Nassau County Sheriff prior to the expiration of 10 years from the filing of the judgment roll will extend beyond the 10 years fro that period of time. A nonparty movant opposes the motion, and cross moves for an order pursuant to CPLR 3211 dismissing the plaintiff's present order to show cause application for an order extending the lien of the judgment entered and docketed on July 29, 1997, upon the subject real property, to wit 790 Daniels Street, Woodmere, New York 11552. The nonparty movant also cross moves for an order pursuant to Rule 130-1 of the Rules of the Chief Administrator of the Courts awarding the proposed intervenor costs, disbursements and reasonable attorney's fees incurred with respect to the instant cross motion, and assessing sanctions against the opposing counsel for the frivolous conduct associated with the material misrepresentations contained in counsel's present order to show cause application, and with regard to violating a prior order of the Court pertaining to this matter. The plaintiff opposes the cross motion.
The plaintiff's attorney states, in a supporting affirmation to the plaintiff's motion, the Court granted the plaintiff's application to extend the time to enforce the subject lien for a period of 180 days from July 29, 2007, by and order dated August 3, 2007, but this execution expires on or about January 29, 2008. The plaintiff's attorney points out on or about November 15, 2007, the movant, the former spouse of the defendant Harold Parker made an application to the Court to intervene in the underlying action, and to vacate the plaintiff's lien. The plaintiff's attorney also notes the Court issued a temporary restraining order against the sale of the subject premises, so it is necessary to protect the plaintiff's rights to enforce the subject monetary judgment.
The attorney for the cross movant submits, in supporting affirmation dated January 31, 2008, the plaintiff's present application is defective on its face, and must be denied due to intentional misrepresentations made by plaintiff's counsel in his January 29, 2008 affirmation submitted to the Court in support of such application. The attorney for the cross movant points to paragraph five of that affirmation where counsel concedes the Court issued an order dated August 3, 2007, which granted a prior application for an extension of time to enforce the subject lien for a period of 180 days, yet opposing counsel avers in the last paragraph of that affirmation that "no previous application for the relief sought herein has been made." The attorney for the cross movant notes plaintiff's counsel in paragraph 3 of that supporting affirmation alleges the instant application for an extension is warranted, as "the judgment debtor, Harold Parker, has just been located and found to be a resident of the State of Florida, a factor that will also require additional time to execute the judgment." The attorney for the cross movant contends that latter statement is also factually incorrect, and constitutes another material misrepresentation to the Court, as the plaintiff's counsel made the very same allegation in a prior application dated July 29, 2007 for the same relief which culminated in the Court's August 3, 2007 order. The attorney for the cross movant maintains, predicated upon those facts, the intentional misstatements contained in counsel's affirmation dated January 29, 2008, not only warrant the denial of the plaintiff's motion, but warrant the imposition of sanctions. The attorney for the cross movant reports, presumably at the direction of the plaintiff's counsel, the proposed intervenor, the cross movant, recently received correspondence dated January 18, 2008, from the Deputy Sheriff's Office advising the sale of the subject premises is scheduled for February 20, 2008. The attorney for the cross movant avers the service of that legal notice of the Sheriff's sale, as well as the scheduling of a sale dated while the stay, is still in effect, is indirect contravention, and in violation of the Court's November 27, 2007 order, and constitutes further grounds for the imposition of sanctions, as that conduct on the part of the plaintiff's counsel was intentional and wilful, and in total disregard of a court order. The attorney for the cross movant contends, given all of these reasons, the proposed intervenor-movant should be compensated for all costs and disbursements associated with bringing the present cross motion which has already exceeded two hours of counsel's time, and sanctions should be assessed due to opposing counsel's obvious improper conduct. The attorney for the cross movant argues the plaintiff is not entitled to the relief sought in the plaintiff's present motion because CPLR 5203 does not provide for the 180 day extension of any lien against real property, rather that statute specifically limits any extension under the specific circumstances set forth in that law. The attorney for the cross movant also contends the plaintiff has already had the benefit of a 180 day extension for the subject lien which it initially was not entitled.
The plaintiff's attorney states, in an opposing affirmation dated February 1, 2008, to the movant's cross motion, that it was received by facsimile in the plaintiff attorney's law office on February 1, 2008, although the plaintiff's attorney had not consented to facsimile service of motions. The plaintiff's attorney states the cross motion was noticed returnable on February 7, 2008, less than seven days from February 1, 2008, and in violation of the motion notice requirements of the CPLR. The plaintiff's attorney states the application for an extension of time for the lien is made due to the present stay imposed on the sale obtained by the proposed intervenor. The plaintiff's attorney notes the terminology that "no previous application for the relief sought herein has been made" is standard form language required by the Clerk's office upon submission of orders to show cause, and a second extension of the lien has never been sought. The plaintiff's attorney suggests an amendment with respect to the opposing counsel's indication, to wit "except as indicated herein." The plaintiff's attorney alleges the language stating the judgment debtor resides in Florida was taken from the supporting affidavit in the first order to show cause, and concedes this language was perhaps in artfully retained in the second affirmation which was in part modeled on the first sworn statement. The plaintiff's attorney denies the instant application is frivolous, i.e. without foundation in law or fact, rather was required by the proposed intervener's actions in obtaining a stay on the proceedings. The plaintiff's attorney avers it is unclear whether the proposed intervener ever served its temporary restraining order upon the Sheriff's Office, although the proposed intervener was aware the Sheriff was involved. The plaintiff's attorney points out the proposed intervener has no standing to oppose the application for an extension of the pending lien, so the cross motion and the opposing arguments should not be considered. The plaintiff's attorney also points out CPLR 5203 (b) specifically states a judgment lien may be extended for "the time necessary to complete advertisement and sale of real property" without any limitation stated.
The attorney for the cross movant states, in a reply affirmation dated February 6, 2008, in further support of the cross motion, the instant cross motion was served upon plaintiff's counsel by fax transmission and by regular mail, and adds, facsimile service was previously used on November 21, 2007, and counsel for the cross movant was never advised facsimile service was unacceptable. The attorney for the cross movant challenges opposing counsel's suggestions in paragraph three of his affirmation regarding "no prior application for the relief sought therein," was a material misstatement, and it cannot be amended now since it was inaccurate and misleading information. The attorney for the cross movant insists paragraph four of that affirmation concerning pertaining to the residence of the judgment debtor was an erroneous and misleading representation. The attorney for the cross movant avers opposing counsel, by signing an affirmation and certification, was well aware he was representing, as an officer of the Court, and under penalty of perjury, that his statements were truthful in all respects, but they were not. The attorney for the cross movant also points to paragraph six of the opposing counsel's affirmation, and states, contrary to what counsel asserts there, the Sheriff's Office was service by regular mail with the proposed intervener's signed order to show cause on November 27, 2007, which was in compliance with the Court's directive. The attorney for the cross movant contends, although no decision has to date been rendered regarding the proposed intervener's earlier application nevertheless it is submitted the cross movant has standing to oppose the plaintiff's application for an extension of time to perfect a lien on this property, since the Court required service of such application upon both the judgment debtor, and his former wife, who was previously granted sole ownership of their marital residence. The attorney for the cross movant contends the opposing counsel is less than forthright suggesting pursuant to CPLR 5203 the plaintiff is entitled to a 180 day extension of time to perfect its lien. The attorney for the cross movant notes that statute specifically limits any extension "for a period no longer than the time during which the judgment creditor was stayed from enforcing the judgment, or the time necessary to complete advertisement and sale of real property in accordance with section 5236, pursuant to an execution delivered to a sheriff prior to the expiration often years from the filing of the judgment-roll." The attorney for the cross movant asserts the cross motion should be granted in its entirety.
This Court has carefully reviewed and considered all of the papers submitted on the plaintiff's motion and the nonparty movant's cross motion. CPLR 5203 (b) provides:
Upon motion of the judgment creditor, upon notice to the judgment debtor, served personally or by registered or certified mail, return receipt requested, to the last known address of the judgment debtor, the court may order that the lien of a money judgment upon real property be effective after the expiration of ten years from the filing of the judgment-roll, for a period no longer than the time during which the judgment creditor was stayed from enforcing the judgment, or the time necessary to complete advertisement and sale of real property in accordance with section 5236, pursuant to an execution delivered to a sheriff prior to the expiration of ten years from the filing of the judgment-roll. The order shall be effective from the time it is filed with the clerk of the county in which the property is located and an appropriate entry is made upon the docket of the judgment.
Professor David D. Siegel states:
where the judgment creditor issues the execution before the expiration of the 10-year lien period but where it appears likely that the period will expire before advertisement and sale of the realty, which takes place pursuant to the detailed requirements of CPLR 5236, can be completed. Subdivision (b) of CPLR 5203 permits the court to extend the lien, by order, to cover the period needed to perfect the sale
Siegel, Practice Commentaries, Mckinney's Consol Laws of NY, Book 7B, CPLR 5203, C5203:6.
The plaintiff has brought a motion for specific relief permitted under CPLR 5203 (b), and the cross movant is a nonparty to the underlying action. Moreover, the cross movant "cannot seek to intervene in a proceeding that has come to its final conclusion; there must be a pending proceeding in which to intervene [citations omitted]" ( Town Of Crown Point v. Cummings , 300 A.D.2d 873, 874, 752 N.Y.S.2d 425 [3rd Dept., 2002]). This Court determines the motion is granted, and that branch of the cross motion seeking to dismiss the plaintiff's request is denied.
CPLR 3211 (a) provides:
Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded upon documentary evidence; or 2. the court has not jurisdiction of the subject matter of the cause of action; or 3. the party asserting the cause of action has not legal capacity to sue; or 4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires; or 5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or 6. with respect to a counterclaim, it may not properly be interposed in the action; or 7. the pleading fails to state a cause of action; or 8. the court has not jurisdiction of the person of the defendant; or 9. the court has not jurisdiction in an action where service was made under section 314 or 315; or 10. the court should not proceed in the absence of a person who should be a party. 11. the party is immune from liability pursuant to section seven hundred twenty-a of the not-for-profit corporation law.
CPLR 3211 (e) provides:
Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship. The foregoing sentence shall not apply in any proceeding under subdivision one or two of section seven hundred eleven of the real property actions and proceedings law. The papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed. An objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading.
The cross movant here is not a party to the underlying action, and the time to bring a motion for an order pursuant to CPLR 3211 (a) has passed. This Court finds the plaintiff's motion is made with merit in law and is supported by a reasonable argument for an extension.
NYCRR § 130-1.1 (a) provides:
The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part.
NYCRR § 130-1.1 (b) provides:
The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
And, NYCRR § 130-1.1 (c) provides:
conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
This Court finds the conduct alleged by the nonparty movant here does not meet the requirements of NYCRR § 130-1.1. This Court did consider, among other issues whether the circumstances under which the plaintiff's and the plaintiff attorney's conduct took place, including the time available for investigating the legal or factual basis of the conduct; and whether or not the plaintiff's and the plaintiff attorney's conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. This Court, after due consideration of the issues determines the plaintiff and the plaintiff attorney's conduct was not frivolous conduct as required by NYCRR § 130-1.1.
Accordingly, the motion is granted, and the cross motion is denied. All matters not decided herein are hereby denied.
So ordered.