Opinion
July 20, 1970
In a proceeding to set aside certain proceedings to enforce a money judgment which appellant had procured against defendant, the appeal is from an order of the Supreme Court, Suffolk County, entered December 16, 1969, which granted the application to the extent of staying appellant from taking steps to enforce or collect the judgment, pursuant to CPLR 5208. Order reversed, on the law, without costs, and application denied. The findings of fact below are affirmed. A judgment was entered in appellant's favor against defendant, Weeks, in the Supreme Court, Nassau County, on August 1, 1968 and a transcript thereof was docketed in the office of the Clerk of Suffolk County on August 8, 1968. On December 13, 1968, an execution upon the judgment was issued to the Sheriff of Suffolk County against the interest of defendant in certain real property, with $632.09 due to satisfy the judgment. Defendant owned the property as a tenant in common with respondent. Thereafter, on May 13, 1969, defendant died; and the Sheriff advertised the real property for sale on September 9, 1969. Respondent brought this proceeding to stay the Sheriff's sale of the property. CPLR 5208 provides: "Except where otherwise prescribed by law, after the death of a judgment debtor, an execution upon a money judgment shall not be levied upon any debt owed to him or any property in which he has an interest, nor shall any other enforcement procedure be undertaken with respect to such debt or property, except upon leave of the surrogate's court". In our opinion, the court erred when it stayed the Sheriff's sale. Respondent appears to us to have no standing to seek to stay enforcement proceedings by the judgment creditor, appellant, against his debtor. While respondent argues that she is the sole beneficiary of the judgment debtor under a document purported to be his will, that document had not even been submitted for probate some seven months after the death of the judgment debtor. The purported will, as noted in the record on appeal, does not even indicate that it was executed as required under EPTL 3-2.1. From the record, respondent has not sustained her burden of indicating that she is anything but a legal stranger to the judgment debtor and thus without standing to stay the judgment creditor's enforcement proceedings. Furthermore, despite the absence of standing, CPLR 5208 is inapplicable in the case at bar. As we view the statute, it would appear that there are two distinct prohibitions which come into play after the death of a judgment debtor. First, an execution upon a money judgment shall not be levied upon any debt owed to him or any property in which he has an interest, and second, no enforcement procedure shall be undertaken with respect to such property without the leave of the Surrogate's Court. Since a judgment is a lien upon the real property of the judgment debtor in the county where the judgment is docketed, it is not necessary that the Sheriff make any formal levy or seizure before proceeding to advertise and sell ( Wood v. Colvin, 5 Hill 228). Indeed it would be an idle ceremony for the Sheriff to go on the land or make an inventory of it or do any other act of such nature (9 Carmody-Wait 2d, New York Practice, § 64:159). As to the second statutory prohibition, it is our opinion that the publication and sale of the judgment debtor's real property after his death, where execution had been issued to the Sheriff prior thereto, is not the undertaking of a separate enforcement procedure but merely the continuation and completion of the enforcement procedure of execution which had already been commenced. In short, execution and the sale of real property are not two separate and distinct enforcement procedures, but rather the sale of real property is a necessary adjunct to or an integral part of the enforcement procedure of execution which, in our opinion, was commenced by the issuance of the execution to the Sheriff prior to the death of the judgment debtor. Because neither of the statutory prohibitions appears to be applicable in the instant situation, and since respondent lacks standing to stay the enforcement proceedings, the order appealed from should be reversed and her application denied. Martuscello, Latham and Brennan, JJ., concur; Hopkins, Acting P.J., concurs solely on the ground that appellant was without standing to bring this proceeding. Benjamin, J., dissents and votes to affirm the order, with the following memorandum: I think respondent had standing to seek this stay and was entitled to it under CPLR 5208. That section provides that no enforcement procedure shall be undertaken against a judgment debtor's property after his death, except upon leave of the Surrogate's Court which granted letters testamentary or letters of administration upon his estate; it further provides that, if such letters have not been issued within 18 months after the judgment debtor's death, a court which can enforce the judgment may then grant leave to enforce it. The plain purpose of this statute is to ensure an orderly and equitable distribution of a decedent's estate; and, in accomplishing that end, the Surrogate's Court will not direct the sale of realty if there is sufficient personalty in the estate to pay the judgment against the decedent (see McKinney's Cons. Laws of N.Y., Book 7B, CPLR 5208, Legislative Studies and Reports, pp. 62-66). The statute does not say who may have the standing to seek a stay of its violation. Moreover, in this case 18 months have not yet elapsed since the judgment debtor's death. There are two reasons why respondent had standing to seek this stay. First: She is the sole beneficiary of a will executed by the decedent a few years before his death; and no other will has been offered for probate. We may not assume (as the majority seemingly does) that this will is invalid merely because it was not offered for probate within seven months after the decedent's death and, as printed in the record on appeal, it contains only the decretal provisions without an attestation clause. Respondent may not have offered it for probate because she lived in the house with the decedent, and already had possession of it as cotenant in common. Nor is there any real significance in the absence of the attestation clause from the will as printed in the record on appeal. We may safely assume that the original will was drawn by an attorney and has a valid attestation clause because (a) the decretal part is in correct legal form; (b) it is in correct and legal phraseology; (c) the named executor is an attorney; and (d) it was recorded in the Surrogate's Court. It would seem, then, that the failure to include the attestation clause in the copy printed in the record can fairly be attributed to present counsel's neglect and nothing more. In sum, the record adequately establishes that respondent is the decedent's sole heir and thus had standing to seek the stay. Second: As above-noted, respondent was a cotenant in common of this property and an actual occupant of it. As such, she had a vital interest in protecting her undivided half interest and her occupancy from being linked to a stranger who might buy in the decedent's half interest at a sheriff's sale, since such buyer might be antagonistic, an undesirable neighbor, or perhaps even one who might seek to compel a partition or sale of the property. Remembering that the statute does not specify who has standing to seek a stay of this Sheriff's sale, it seems plain to me that respondent has sufficient interest in the property, as cotenant in common and occupant of the house, to acquire standing to seek a stay of the sale. In this connection it may be noted that the original statute (enacted in 1848) considered tenants of the realty as parties in interest (see Legislative Studies and Reports, supra). I further believe that CPLR 5208 supports the grant of this stay. The advertising and sale of this property clearly seems to be an enforcement proceeding within the meaning of that section; and the section forbids it unless the approval of the Surrogate has first been obtained. Wood v. Morehouse ( 45 N.Y. 368 [which sustained the sale of realty where execution had issued and the sale was advertised before the judgment debtor's death]) is distinguishable and not controlling. In Wood the sale proceeding had been commenced before the debtor died; in the case at bar the advertising was started after the debtor's death; and that distinction is emphasized in the Legislative Studies and Reports on CPLR 5208 ( supra), which seemingly disapproved the holding in Wood. Moreover, when Wood was decided, in 1871, the then-existing statute did not contain the phrase "nor shall any other enforcement procedure be undertaken", which is found in the present statute (see Legislative Studies and Reports, supra). In sum, I believe respondent had standing to seek the stay; she was entitled to it under CPLR 5208; and orderly, fair procedure in the administration of the judgment debtor's estate justified the grant of the stay by Special Term.