Opinion
69589/2019
02-11-2020
WILMINGTON SAVINGS FUND SOCIETY, FSB, Not in Its Individual Capacity but Solely as Certificate Trustee of Bosco Credit II Trust Series 2010-1, Plaintiff, v. Garth JOHN, Defendant.
Attorneys for Plaintiff: Knuclkes, Komosinski & Manfro, LLP, By Adam S. Wynn, Esq.
Attorneys for Plaintiff: Knuclkes, Komosinski & Manfro, LLP, By Adam S. Wynn, Esq.
William J. Giacomo, J. In an action for a renewal judgment pursuant to CPLR 5014, the plaintiff moves for summary judgment in lieu of complaint pursuant to CPLR 3213.
Factual and Procedural Background
On September 15, 2008, a judgment was entered and docketed in the amount of $32,705.86 in favor of Franklin Credit Management Corporation and against the defendant under Westchester County Index No. 13804/08. Ultimately, the judgment was transferred to the plaintiff herein by assignment. The judgment remains unsatisfied.
On December 2, 2019, the plaintiff, as assignee, commenced this action with the filing of a summons and a motion for summary judgment in lieu of complaint pursuant to CPLR 3213. Plaintiff seeks to renew the judgment and lien, nunc pro tunc, to September 15, 2018, and to amend the judgment, nunc pro tunc, to reflect the plaintiff herein as the judgment creditor. The motion is unopposed.
Discussion
"Since a money judgment is viable for 20 years, but a lien on real property is only effective for 10 years [ ], the Legislature enacted CPLR 5014 to allow a judgment creditor to apply for a renewal of the lien by commencing an action for a renewal judgment" ( Schiff Food Prods., Co., Inc. v. M & M Import Export , 84 A.D.3d 1346, 1347-1348, 924 N.Y.S.2d 158 [2d Dept. 2011] quoting CPLR 5014 [1] ; Gletzer v. Harris , 12 N.Y.3d 468, 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224 [2009] ).
The statute provides, in pertinent part:
An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment. The judgment in such action shall be designated a renewal judgment and shall be so docketed by the clerk. The lien of a renewal judgment shall take effect upon the expiration of ten years from the first docketing of the original judgment ( CPLR § 5014 ).
"As long as the renewal judgment is obtained within the 10-year lien period, the lien that it carries takes effect not immediately, but only upon expiration of the first 10-year lien period, avoiding a lien gap and at the same time giving the judgment creditor a full 10 years of new lien" ( Schiff Food Prods., Co., Inc. v. M & M Import Export , 84 A.D.3d at 1348, 924 N.Y.S.2d 158 ; see Gletzer v. Harris , 12 N.Y.3d at 474-475, 882 N.Y.S.2d 386, 909 N.E.2d 1224 ).
Here, the judgment creditor has commenced this action for a renewal judgment more than ten years since the judgment was originally docketed. Thus, while this action is timely, the plaintiff in unable to avoid a lien gap by operation of CPLR 5014 (see Schiff Food Prods., Co., Inc. v. M & M Import Export , 84 A.D.3d at 1348, 924 N.Y.S.2d 158 [holding that a judgment creditor may commence an action for a renewal judgment pursuant to CPLR 5014 where ten years has elapsed since the judgment was originally docketed. In that circumstance, however, the judgment creditor will not be entitled to avoid a lien gap] ). Indeed, the Court of Appeals in Gletzer v. Harris , 12 N.Y.3d at 474, 882 N.Y.S.2d 386, 909 N.E.2d 1224 noted that "nowhere does the statute expressly mandate nunc pro tunc treatment of a renewal lien where the order is granted after the original lien has expired".
The Court finds that plaintiff has made a prima facie showing of its entitlement to a renewal judgment by offering evidentiary proof that it was the original judgment creditor's assignee, and that no part of the judgment has ever been satisfied (see Premier Capital, LLC v. Best Traders, Inc. , 88 A.D.3d 677, 930 N.Y.S.2d 249 [2d Dept. 2011] ).
Inasmuch as plaintiff commenced this action more than 10 years after the original judgment has been docketed, Gletzer makes it clear that the plaintiff is not entitled to a renewal judgment nunc pro tunc to September 15, 2018. However, the issue raised herein is when does the lien of the renewal judgment become effective.
In Gletzer , the First Department found it was an improvident exercise of discretion for the motion court to enter the renewal judgment nunc pro tunc, rather than as of the date that the plaintiff was able to obtain and docket the renewal judgment (see Gletzer v. Harris , 51 A.D.3d 196, 205, 854 N.Y.S.2d 10 [1st Dept. 2008] ). In reversing the motion court, the First Department deemed Gletzer's renewal judgment "entered as of the date the relief was granted" ( Gletzer v. Harris , 51 A.D.3d at 206, 854 N.Y.S.2d 10 ). Upon further appeal, the Court of Appeals, in answering the question as to whether a lien from a renewal judgment secured pursuant to CPLR 5014 for a second 10-year period takes effect nunc pro tunc on the expiration date of the original lien, held:
Because CPLR 5014 does not provide for a renewal judgment to have retroactive effect to the original
lien's expiration date and because nunc pro tunc treatment is inappropriate where, as here, additional lenders relying on the public record acquired rights in the
property, we hold that the renewal lien becomes effective when granted by Supreme Court ( Gletzer v. Harris , 12 N.Y.3d at 470, 882 N.Y.S.2d 386, 909 N.E.2d 1224 ).
The plaintiff's instant motion for a renewal judgment is granted by this Court as of the date of this decision and order and is uploaded to NYSCEF. However, as of such date, the renewal judgment has not yet been submitted by the plaintiff to the Westchester County Clerk for entry. It is not until the judgment is entered and docketed (which is done simultaneously) by the Westchester County Clerk that it is accessible by the public at either the Westchester County Clerk's White Plains office or Westchester Records Online. Indeed, any potential lender searching the records in Westchester County after September 15, 2018, until such time as the renewal judgment is entered and docketed by the County Clerk would have notice only of the already expired and not renewed 2008 judgment (see Gletzer v. Harris , 51 A.D.3d at 202, 854 N.Y.S.2d 10 ). In practice, a plaintiff could obtain receipt of this order granting the motion for a renewal judgment and submit the renewal judgment to the clerk's office for signature sixty days from now . Within those 60 days the public would not be on notice of such renewal of the judgment and the lien that it carries.
While the Court makes no determination herein, arguably, the judgment would not be subject to the 60-day rule set forth in 22 NYCRR 202.48 (see Farkas v. Farkas , 11 N.Y.3d 300, 869 N.Y.S.2d 380, 898 N.E.2d 563 [2008] ; Shamshovich v. Shvartsman , 110 A.D.3d 975, 973 N.Y.S.2d 748 [2d Dept. 2013] ).
"Those seeking to secure any interest in real property must be able to rely upon a public record to furnish full and complete information of any conveyances, liens or encumbrances affecting such property. They should not be penalized for failing to unearth an expired lien or not investigating the prospect that it might be subject to a pending renewal request" ( Gletzer v. Harris , 12 N.Y.3d at 477, 882 N.Y.S.2d 386, 909 N.E.2d 1224 ). "The recording of judgment liens is of particular benefit to prospective purchasers of real property belonging to judgment debtors. The docketing of the judgment is especially for the purpose of giving notice of the lien to third parties dealing with the land of the judgment debtor" (internal citations and quotations omitted) ( Flagstar Bank, FSB v. State of N.Y. , 114 A.D.3d 138, 145, 978 N.Y.S.2d 266 [2d Dept. 2013] ). The 10-year realty lien, although realized when the judgment is duly docketed, is measured not from the time of docketing, but from the filing of the judgment roll, which is essentially the moment the judgment is entered ( Deutsche Bank Natl. Trust Co. v. Gonzalez , 26 Misc. 3d 1219[A], 907 N.Y.S.2d 99 [Sup. Ct., Richmond County 2010] citing CPLR 5017[a] & 5203(a) ; Levine v. Bornstein , 4 N.Y.2d 241, 173 N.Y.S.2d 599, 149 N.E.2d 883 [1958] ; Quarant v. Ferrara , 111 Misc. 2d 1042, 445 N.Y.S.2d 885 [Sup. Ct. Queens County 1981] ).
While an appellate decision, order, or judgment is deemed entered on the date upon which it is issued ( 22 NYCRR 1250.16 [a] ), a Supreme Court judgment is entered when, after it has been signed by the clerk, it is filed by the clerk (see CPLR 5016[a] ). Immediately after filing the judgment roll, the clerk dockets the judgment ( CPLR § 5018[a] ). A judgment is docketed when the Clerk makes an entry under the surname of the judgment debtor first named in the judgment consisting of, inter alia, (i) the name and last known address of each judgment debtor; (ii) the name and last known address of the judgment creditor; (iii) the sum recovered; (iv) the date and time the judgment roll was filed; (v) the date and time of docketing; (vi) the court and county in which the judgment was entered; and (vii) the name and office address of the attorney for the judgment creditor (see CPLR 5018[c] ). Once docketed, a judgment becomes a lien on the real property of the judgment debtor in the county of docketing (see Flagstar Bank, FSB v. State of New York , 114 A.D.3d 138, 978 N.Y.S.2d 266 [2d Dept. 2013] ; Schiff Food Prods., Co., Inc. v. M & M Import Export , 84 A.D.3d at 1348, 924 N.Y.S.2d 158 ; see CPLR 5203[a] ).
A lien does not attach until the judgment is docketed in the county where the land lies, where it may be found docketed in a book containing the names of the judgment debtor and judgment creditor, known as the docket book [ ]. As Professor Siegel explains, only a docketing of the judgment in the office of the county clerk will bring about the lien (internal citations and quotation marks omitted) ( Gletzer v. Harris , 12 N.Y.3d at 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224 quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5203:2).
Thus, in light of the foregoing interests, the Court finds that the plaintiff is entitled to a renewal judgment which lien shall be effective as of the date such renewal judgment is entered and docketed by the Westchester County Clerk .
This holding, while it may appear to be contrary to the Court of Appeals' express holding in Gletzer v. Harris , 12 N.Y.3d at 470, 882 N.Y.S.2d 386, 909 N.E.2d 1224 ["we hold that the renewal lien becomes effective when granted by Supreme Court"], is in accord with the rationale of Gletzer in that "those seeking to secure any interest in real property must be able to rely upon a public record to furnish full and complete information of any liens or encumbrances affecting such property" (12 N.Y.3d at 477, 882 N.Y.S.2d 386, 909 N.E.2d 1224 ).
Accordingly, it is
ORDERED that the plaintiff's motion for summary judgment in lieu of complaint is GRANTED; and it is further
ORDERED that the plaintiff shall submit a renewal judgment to the Westchester County Clerk, on notice, under Index No. 13804/2008 in the amount of $32,705.86 in accordance herewith; and it is further
ORDERED that the judgment shall be amended to reflect the plaintiff judgment creditor herein as assignee.