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In re Fischer

Supreme Court of New York, Second Department

December 18, 2019

In the Matter of David Fischer, etc., appellant-respondent,
v.
Julius Chabbott, et al., respondents-appellants, et al., respondent-respondent. Index No. 506103/17

          Argued - September 24, 2019

         D61518 G/htr

          Heller Horowitz & Feit, P.C., New York, NY (Eli Feit and Stuart A. Blander of counsel), for appellant-respondent.

          Avrom R. Vann, P.C., New York, NY, for respondent-appellant Julius Chabbott.

          Michael A. Haskel, Mineola, NY (Mary A. Wright and Brandon M. Zlotnick of counsel), for respondent-appellant Mayrav Chabbott.

          Gassman Baiamonte Gruner, P.C., Garden City, NY (Stephen Gassman, Karen Bodner, and Deborah Kelly of counsel), respondent-respondent pro se.

          RUTH C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR 5239 to determine adverse claims to certain real property and pursuant to CPLR 5225 for the turnover of certain personal property, David Fischer appeals, and Julius Chabbott and Mayrav Chabbott separately cross-appeal, from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated July 21, 2017. The order, insofar as appealed from, denied that branch of the petition which sought to direct Gassman Baiamonte Gruner, P.C., and Mayrav Chabbott to turn over certain funds in satisfaction of a judgment against Julius Chabbott. The order, insofar as cross-appealed from, granted that branch of the petition which was to determine that David Fischer's interest in certain real property was superior to that of Mayrav Chabbott.

         ORDERED that the cross appeal by Julius Chabbott is dismissed, as Julius Chabbott is not aggrieved by the portions of the order cross-appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144, 156-157); and it is further, ORDERED that the order is affirmed insofar as appealed from; and it is further, ORDERED that the order is reversed insofar as cross-appealed from by Mayrav Chabbott, on the law, and that branch of the petition which was to determine that David Fisher's interest in certain real property was superior to that of Mayrav Chabbott is denied; and it is further, ORDERED that one bill of costs is awarded to Mayrav Chabbott.

         Julius Chabbott and Mayrav Chabbott were married and owned real property located in Lawrence (hereinafter the subject property). In 2014, Mayrav commenced an action for a divorce. In an order dated November 14, 2014, the matrimonial court directed that certain funds due to Julius were to be placed into an interest-bearing escrow account to be maintained by Gassman Baiamonte Gruner, P.C. (known, at that time, as Gassman Baiamonte Betts, P.C.) (hereinafter GBG). The order directed that "no disbursements from said account shall be made without an order from this Court."

         In May 2016 and August 2016, David Fischer was awarded two judgments, in the amounts of $540, 460 and $421, 691.91, respectively, against Julius and five other defendants. Fischer thereafter sent a restraining notice pursuant to CPLR 5222 to GBG and, by letter to GBG, requested that the funds in the escrow account be released to him.

         In an order dated March 23, 2017, the matrimonial court, which was aware of Fischer's judgments and restraining notice, determined that the subject property and the funds in the escrow account would be distributed to Mayrav, and directed GBG to release the funds in the escrow account to her. GBG disbursed the funds in the escrow account on March 27, 2017, in accordance with Mayrav's instructions. A divorce judgment was entered on June 12, 2017.

         Meanwhile, in March 2017, Fischer commenced the instant proceeding. In April 2017, he filed an amended notice of petition, inter alia, pursuant to CPLR 5225 and CPLR 5239, requesting that GBG and Mayrav be directed to turn over funds in their possession in satisfaction of the judgments against Julius, and to determine that Fischer's interest in the subject property was superior to that of Mayrav. In an order dated July 21, 2017, the Supreme Court granted that branch of the petition which was to determine that Fischer's interest in the subject property was superior to that of Mayrav, but denied that branch of the petition which requested that GBG and Mayrav be directed to turn over funds. Fischer appeals, and Mayrav separately cross-appeals.

         "CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor's real property in a county where the judgment has been docketed with the clerk of that county" (Matter of Accounts Retrievable Sys., LLC v Conway, 83 A.D.3d 1052, 1053; see CPLR 5203[a]). Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry "under the surname of the judgment debtor . . . consist[ing] of . . . the name and last known address of [the] judgment debtor" (CPLR 5018[c][1][i]; see Matter of Accounts Retrievable Sys., LLC v Conway, 83 A.D.3d at 1053). "A judgment is not docketed against any particular property, but solely against a name" (We Buy Now, LLC v Cadlerock Joint Venture, LP, 46 A.D.3d 549, 549 [internal quotation marks omitted]). "'Once docketed, a judgment becomes a lien on the ...


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