Summary
holding that the plaintiff who issued the execution was "under no obligation to recall [it]" where the defendant had obtained the stay in its favor (citing Hosp. Service Plan of N.J., 429 N.Y.S. at 33)
Summary of this case from Carmona v. Gene Kazlow, P.C.Opinion
November 12, 1991
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the order is affirmed, with costs.
The court properly concluded that the defendant Consolidated Edison Company of New York (hereinafter Con Ed) is liable to the Sheriff for the poundage fees since Con Ed affirmatively interfered with the Sheriff's collection efforts (see, Personeni v. Aquino, 6 N.Y.2d 35; Thornton v. Montefiore Hosp., 117 A.D.2d 552; Matter of Standardbred Owners Assn. [Yonkers Raceway], 44 Misc.2d 37; cf., Famous Pizza v. Metss Kosher Pizza, 119 A.D.2d 721). The plaintiffs' attorney issued an execution to the Sheriff on or about September 10, 1987, following the trial court's decision that Con Ed, rather than a third-party defendant, was responsible for payment of the settlement in this action. The next day, the Sheriff levied on certain of Con Ed's bank accounts. Con Ed contends that the levy was invalid because, several hours prior to the Sheriff's levy, it had filed an undertaking to obtain a stay pending appeal pursuant to CPLR 5519 (a). There is no proof in the record with respect to when the undertaking was filed, nor does Con Ed allege that the plaintiffs or the Sheriff were given notice of the filing prior to the levy. In any event, the plaintiffs were under no obligation to recall the execution (see, Hospital Serv. Plan v. Warehouse Prod. Sales Employees Union, 76 A.D.2d 882).
Furthermore, Con Ed is liable for the Sheriff's poundage fees because it moved to vacate the plaintiffs' second execution in 1989 (see, CPLR 8012 [b] [2]). The record fails to support Con Ed's contention that the plaintiffs improperly caused the second execution to be issued while a stay was in effect. Bracken, J.P., Harwood, Eiber and O'Brien, JJ., concur.