- September 24, 2019
Horowitz & Feit, P.C., New York, NY (Eli Feit and Stuart
A. Blander of counsel), for appellant-respondent.
R. Vann, P.C., New York, NY, for respondent-appellant Julius
Michael A. Haskel, Mineola, NY (Mary A. Wright and Brandon M.
Zlotnick of counsel), for respondent-appellant Mayrav
Gassman Baiamonte Gruner, P.C., Garden City, NY (Stephen
Gassman, Karen Bodner, and Deborah Kelly of counsel),
respondent-respondent pro se.
C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER COLLEEN D.
DECISION & ORDER
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
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.
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."
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.
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.
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.
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][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 ...