Opinion
Index No. 718272/21
07-15-2022
Sterling Recoveries, Inc., Plaintiff, v. Alejandro Erazo, Defendant.
Michael Samuel, Esq. Attorney for Plaintiff William Y. Fowlkes, Esq. M. Cabrera & Associates, P.C. Attorneys for Defendant
Unpublished Opinion
Michael Samuel, Esq. Attorney for Plaintiff
William Y. Fowlkes, Esq. M. Cabrera & Associates, P.C. Attorneys for Defendant
Robert I. Caloras, J.
The following papers numbered E10-E16, E19-E24 read on this motion by Plaintiff for an order awarding Plaintiff a renewal judgment as demanded in the complaint and direct that the judgment clerk enter said judgment upon presentment of a proper judgment application.
PAPERS NUMBERED
Notice of Motion-Affidavit-Affirmation-Exhibits E10-E16
Affirmation in Opposition-Affidavit-Exhibits E19-E24
Reply Affirmation E25
Upon the foregoing papers, it is ordered that Plaintiff's motion is granted for the following reasons:
Plaintiff moves for an order granting it a renewal judgment. It is undisputed that on August 2, 2006 a judgment was issued in favor of Plaintiff against Defendant in the amount of $17,537.28 under Index Number 52140/06 by the Clerk in Civil Court, Queens County. Plaintiff argues it is entitled to a renewal judgment of the original judgment issued in 2006 pursuant to CPLR 5014.
In opposition, Defendant argues that Plaintiff is not entitled to a renewal of its original judgment. In his affidavit, Defendant stated the following: he formerly owned a home jointly with his daughter and her ex-husband located in Ridgewood, New York. On or about August 22, 2019, he transferred his interest in the Ridgewood home to his daughter. He presently does not own any real property in Queens County or anywhere else. Also, annexed to his affidavit is the deed showing that he transferred his interest in the Ridgewood property to his daughter on November 14, 2019. Based therein, Defendant argues that Plaintiff's request for a renewal judgment pursuant to CPLR 5014 is moot. In the alternative, Defendant argues that the motion should be denied as premature, because discovery is outstanding. Specifically, Defendant claims that Plaintiff has not responded to his request for production of documents he served on April 1, 2022, which seek information regarding the 2006 action and default judgment, including documents regarding service of process. Defendant claims that these documents could potentially provide a basis for him to move to vacate the default judgment entered against him.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
"Although a New York money judgment is enforceable for 20 years (see CPLR 211 [b]), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203 [a])" (Premier Capital, LLC v Best Traders, Inc., 88 A.D.3d 677 [2d Dept. 2011]). "Because a lien on real property is only effective for 10 years and a money judgment is viable for 20 years (see CPLR 211 [b]; 5203 [a]), the Legislature enacted CPLR 5014 to allow a judgment creditor to apply for a renewal of the judgment lien" (Gletzer v Harris, 12 N.Y.3d 468, 473 [2009]). "To avoid expiration of the judgment lien at the end of 10 years, the Legislature amended CPLR 5014, in 1986, to allow real property lienholders to seek timely renewal of the judgment lien during the last year of the pendency of the original lien" (id.). If the renewal judgment is issued within the 10-year lien period, then the lien takes effect upon the expiration of the first 10-year lien period, thereby permitting the judgment creditor to avoid a lien gap (see Gletzer v Harris, supra at 474-475; Schiff Food Prods., Co., Inc. v M & M Import Export, 84 A.D.3d 1346, 1348 [2d Dept. 2011]). However, CPLR 5014 (1) also permits a judgment creditor to commence an action for a renewal judgment where 10 years have elapsed since the judgment was originally docketed" (Premier Capital, LLC v Best Traders, Inc., supra [internal quotation mark omitted]). "In that circumstance, the judgment creditor is not prevented from obtaining a renewal judgment, but will not be entitled to avoid a lien gap by operation of CPLR 5014" (id.).
Here, the Court finds that Plaintiff has established its prima facie entitlement to a renewal judgment by submitting evidence that it was the original judgment creditor's assignee, and that no part of the judgment has ever been satisfied (id.). The Court also finds that Defendant has failed to raise an issue of fact. Initially, this Court is not determining the viability of the lien or its effect upon a particular property. Whether or not Defendant presently owns an interest in real property is not a factor in deciding whether to issue a renewal judgment. Even assuming Defendant transferred his interest in the Ridgewood property in 2019, that does not prevent Plaintiff from obtaining a lien on any real property interest Defendant may acquire during the remaining time left on the original money judgment. However, this renewal lien is not effective during any gap period existing after the expiration of the first ten-year real property lien period and the issuance of the renewal lien (Gletzer v Harris, supra). As such, the renewal judgment is not issued nunc pro tunc to August 2, 2016, rather it shall be effective as of the date such renewal judgment is entered and docketed by the County Clerk in Queens County (Wilmington Savings Fund Society, FSB v John, 67 Misc.3d 319 [Supreme Court, Westchester County 2020]).
The Court also finds that Defendant has not satisfied his burden of demonstrating that Plaintiff's motion for summary judgment is premature, since "[t]he mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion" (Toltchelnikova v Cmty. Recycling, 197 A.D.3d 677 [2d Dept. 2021]; Skura v Wojtlowski, 165 A.D.3d 1196 [2d Dept. 2018]). Accordingly, the motion is granted, and it is
ORDERED, that Plaintiff shall submit a renewal judgment to the Queens County Clerk, on notice, of the judgment which was entered in Civil Court of the City of New York, County of Queens on August 2, 2006, bearing index number 052140/06, in the amount of $17,577.28, and it is
ORDERED that the judgment shall be amended to reflect the plaintiff judgment creditor herein as assignee.8