to mean that the Sheriff should have released the levy and not withheld the poundage. Id. P 4. While Rhomberg correctly notes the ambiguity of the order's language, Rhomberg's interpretation of the phrase is inaccurate. Rather, the language means that the Sheriff should release the levy minus an amount for poundage. The Sheriff has accordingly complied with the release order because he retained some poundage but released the collected funds.
This second interpretation is correct because the ex parte order of attachment requires the plaintiff to pay Sheriff's costs if there is a final determination that the attachment was wrongful. Ex Parte Order of Attach. at 3. As a result, Rashi, not the Sheriff, must bear the Sheriff's fees due to the wrongful attachment. Therefore, we grant Rhomberg's alternative request that the retained poundage of $ 4,456.35 be borne by Rashi.
Additionally, we find that the Sheriff's cross-motion to fix poundage should be granted in the amount of $ 12,636.50
pursuant to New York law.
The Sheriff is entitled to poundage even though the order of attachment was vacated. See Knoll v. Knoll, 78 Misc. 2d 710, 358 N.Y.S.2d 92, 93 (Sup. Ct. 1974) (explaining that where parties agree to vacate attachment, sheriff is nevertheless due poundage) . New York law states that, "where an order of attachment is vacated or set aside, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the order of attachment, and the court may order the party at whose instance the order of attachment was granted to pay the same to the sheriff. . . ." N.Y. Civ. Prac. L. & R. § 8012(b)(3).
While the general rule is that the Sheriff is entitled to receive poundage only upon amounts actually collected, see Estate of Pearson, 72 Misc. 2d 995, 340 N.Y.S.2d 119 (Surr. Ct. 1973), CPLR Section 8012(b)(3) makes an exception to this rule. Id. Even if the Sheriff has not collected all of the amounts levied upon, the Sheriff may receive poundage if the order of attachment has been vacated. Id. Thus, because the Sheriff levied on over $ 400,000 while collecting only $ 88,000, the Sheriff is entitled to poundage limited by the amount of the undertaking specified in the attachment order.
Therefore, the Sheriff's request to fix poundage in the amount specified in the attachment order is justified. Furthermore, Rashi must pay the Sheriff poundage because Rashi was the "party at whose instance the order of attachment was granted." However, because the Sheriff retained $ 4,456.35 as poundage when he released the collected funds, and Rashi will pay this amount to Rhomberg, Rashi is liable to the Sheriff only for the difference between the amount of the undertaking reserved for Sheriff's costs ($ 12,363.50) and the amount retained by the Sheriff ($ 4,456.35), which amount is $ 8,180.15.
b. Application for Attorney's Fees from Sheriff
Rhomberg's second additional claim for damages is that the Sheriff should pay attorney's fees in the amount of $ 1,270.00 for the preparation of the second motion. Defendant's Notice of Motion P 7. Alternatively, Rhomberg requests these costs from Rashi if this court does not find the Sheriff liable for these damages. Id. at 7. These fees were proximately caused by the attachment and should be included in Rhomberg's CPLR § 6212(e) application. Thus, Rashi should bear these attorney's fees.
c. Application for Additional Fees and Costs from Rashi
In addition to the costs requested from the Sheriff, Rhomberg also asks that the fees incurred since the filing of its first application for fees and costs should be incorporated into the total damages against Rashi. Id. PP 8-14. Specifically, Rhomberg contends that since November 24, 1993, it has incurred $ 8,001.50 in fees relating to the attachment and $ 546.00 in costs. Rhomberg requests that this total, $ 8,547.50, be added to its first request of $ 43,950.41. We agree with Rhomberg that these damages should be assessed against Rashi.
3. Attorney's Fees Included in Rhomberg's Reply to Sheriff's Cross-Motion to Fix Poundage
Rhomberg requests that the Sheriff pay an additional $ 860.00 in legal fees to cover Rhomberg's costs in responding to the Sheriff's cross-motion to fix poundage. Stephen M. Harnick Reply Aff. (May 6, 1994) at 4. These damages, however, were proximately caused by the wrongful attachment. Consequently, Rhomberg should have requested these costs from Rashi rather than the Sheriff. Thus, we deny this application.
4. Damages Conclusion
We find that both the retained poundage and the additional fees and costs, with the exception of the $ 860.00, should be assessed against Rashi. These additional requests bring the total of Rhomberg's damages to $ 58,224.26, which we order Rashi to pay to Rhomberg as a result of Rashi's wrongful attachment of Rhomberg's property. Additionally, we grant the Sheriff's cross-motion for poundage and direct Rashi to pay to the Sheriff $ 8,180.15 which is the difference between the undertaking specified in the attachment order and the amount retained by the Sheriff upon release of the collected funds.
Dated: New York, New York
June 29, 1994
ALLEN G. SCHWARTZ, U.S.D.J.