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First New York Bank For Business, Plaintiff v. Geoffrey Alexander

March 19, 2013

FIRST NEW YORK BANK FOR BUSINESS, PLAINTIFF,
v.
GEOFFREY ALEXANDER, DEFENDANT-RESPONDENT. THE CADLE COMPANY, ASSIGNEE-APPELLANT.



The opinion of the court was delivered by: Rom n, J.

First N.Y. Bank for Bus. v Alexander

Appellate Division, First Department

Decided on March 19, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

David Friedman, J.P. David B. Saxe Leland G. DeGrasse Nelson S. Roman, JJ.

Assignee appeals from an order of the Supreme Court, New York County (Anil C. Singh, J.), entered January 27, 2012, which granted defendant's motion to declare that an April 25, 1990 judgment in the amount of $314,735.19 was conclusively presumed to have been paid and satisfied in accordance with CPLR 211(b).

ROMAN, J.

On April 25, 1990, upon defendant's default, judgment in this action, in the amount of $314,735.19, plus interest, was entered in plaintiff's favor. On June 14, 1994, plaintiff assigned the judgment to The Cadle Company (Cadle). Pursuant to the assignment, Cadle was appointed "as the true and lawful attorney in fact for the Assignor [plaintiff], irrevocably, with power of substitution and revocation, to ask, demand and receive, and to issue executions and take all necessary steps for the recovery of the money due or to become due on said judgment."

On October 15, 2005, defendant filed for relief under Chapter 7 of the United States Bankruptcy Code.*fn1 Within the portion of his bankruptcy petition requiring an itemization of all unsecured debt, defendant listed a judgment awarded to plaintiff in the amount of $10,000. Where the petition asked for an account number in reference to the judgment, defendant listed this action's index number. Finally, in another portion of the petition entitled "Statement of Financial Affairs," which required defendant to list all lawsuits to which he had been a party, defendant listed this action's caption, its index number, and that it was disposed of by judgment. However, while this action was brought in Supreme Court, defendant stated in his petition that this action was brought in Civil Court.

In September 2011, since defendant had not made any payments on the judgment, Cadle soughtto enforce the judgment by serving restrainingnotices and subpoenas on several individuals. Thereafter, and in response, defendant made a motion seeking, inter alia, a declaration pursuant to CPLR 211(b). Specifically, defendant asked the motion court to declare that since plaintiff had not sought to enforce or collect on the judgment for more than 20 years from the time it was first entitled to enforce it, the judgment was presumed paid and satisfied and that, therefore, plaintiff was barred from enforcing it. Cadle opposed defendant's motion, arguing that, pursuant to CPLR 211(b), insofar as defendant acknowledged the judgment in the bankruptcy petition he filed in 2005, it had 20 years from the date of the acknowledgment to enforce the judgment.

Concluding that defendant's failure to acknowledge the full amount of the judgment in his bankruptcy petition did not trigger the exception in CPLR 211(b), the motion court granted defendant's motion, declaring that the judgment was presumed paid and satisfied. Cadle appealed and we hereby reverse.

CPLR 211(b) states, in pertinent part, that "[a] money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. . . . If such an acknowledgment or payment is made, the judgment is conclusively presumed to be paid and satisfied as against any person after the expiration of twenty years after the last acknowledgment or payment made by him." Accordingly, unless the party against whom a money judgment is granted, inter alia, acknowledges his or her indebtedness in a signed writing, the statute of limitations for an action to collect ona money judgment is 20 years from the date that the judgment can first be enforced. If, however, a party acknowledges his or her indebtedness to a money judgment, the statute of limitations runs anew, and is then 20 years from the last acknowledgment.

Provided that the judgment debtor admits in writing that it owes a debt to the person to whom a money judgment isgranted and that such admission is conveyed to the judgment creditor, such writing constitutes an acknowledgment of an obligation to pay (Fletcher v Daniels, 52 App Div 67, 68 [4th Dept 1900] [An acknowledgment, i.e. "a recognition of the debt [and] an admission that the writer is the debtor of the person addressed," is sufficient to make a new date from which the statute of limitations commences to run]). Moreover, for purposes of CPLR 211(b), such acknowledgment need not list the amount owed, the character of the obligation, or a promise to pay the debt (id. at 69; Matter of Bassford, 91 NYS2d 105, 114 [Sur Ct, Westchester County 1949] [construing Civil Practice Act § 44, statutory predecessor to CPLR 211(b)], affd 277 App Div 1128 [2d Dept 1950]; Buckner v Bank of N.Y., 116 NYS2d 248, 249 [Sup Ct, NY County 1952] [same]; Arizona Fire Ins. Co. v King, 172 Misc 165, 167 [Sup Ct, NY County 1939] [same]; 2B Carmody-Wait 2d § 13:470[2012] ...


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