Rose
v.
Gulizia

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Second Department, New York.Mar 13, 2013
961 N.Y.S.2d 286 (N.Y. App. Div. 2013)
961 N.Y.S.2d 286104 A.D.3d 7572013 N.Y. Slip Op. 1542

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2013-03-13

Joyce ROSE, respondent, v. Richard GULIZIA, appellant.

Robert R. Gulizia, Port Jefferson Station, N.Y., for appellant. Sharon L. Silver, Islandia, N.Y., for respondent.



Robert R. Gulizia, Port Jefferson Station, N.Y., for appellant. Sharon L. Silver, Islandia, N.Y., for respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

In an action, inter alia, for a renewal judgment pursuant to CPLR 5014, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 28, 2011, as granted that branch of the plaintiff's motion which was, in effect, for summary judgment on so much of the complaint as sought the entry of a renewal judgment in the amount of $18,971, plus interest to be determined by the County Clerk.

ORDERED that the order is modified, on the law, by adding thereto a provision specifying that the defendant is to be credited for all monthly payments already made; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of whether the payments already made are to be applied to the principal, the interest, or both, and for the entry of an amended order thereafter.

Although a New York money judgment is enforceable for 20 years ( seeCPLR 211[b] ), a real property lien resulting from the judgment is viable for only 10 years ( seeCPLR 5203[a] ). For this reason, the Legislature enacted CPLR 5014 to give a judgmentcreditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment ( see Gletzer v. Harris, 12 N.Y.3d 468, 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224). “Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years have elapsed since the judgment was originally docketed” ( Pangburn v. Klug, 244 A.D.2d 394, 395, 664 N.Y.S.2d 71;see Premier Capital, LLC v. Best Traders, Inc., 88 A.D.3d 677, 678, 930 N.Y.S.2d 249;Schiff Food Prods. Co., Inc. v. M & M Import Export, 84 A.D.3d 1346, 1348, 924 N.Y.S.2d 158). “An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment” (CPLR 5014). The plaintiff here established her prima facie entitlement to judgment as a matter of law awarding her a renewal judgment pursuant to CPLR 5014(1) by demonstrating the existence of the prior judgment, that the defendant was the judgment debtor, that the judgment was docketed at least nine years prior to the commencement of this action, and that the judgment remains partially or completely unsatisfied ( see Premier Capital, LLC v. Best Traders, Inc., 88 A.D.3d at 678, 930 N.Y.S.2d 249;Baiz v. Baiz, 10 A.D.3d 375, 376, 780 N.Y.S.2d 770). In opposition, the defendant failed to raise a triable issue of fact ( see Pangburn v. Klug, 244 A.D.2d at 395, 664 N.Y.S.2d 71;see also Premier Capital, LLC v. Best Traders, Inc., 88 A.D.3d at 678, 930 N.Y.S.2d 249;Schiff Food Prods. Co., Inc. v. M & M Import Export, 84 A.D.3d at 1348, 924 N.Y.S.2d 158).

The order must be modified, however, to expressly reflect that the defendant is to be credited for all monthly payments already made, and a determination must be made as to whether those payments are to be applied to the principal, the interest, or both ( see Baiz v. Baiz, 10 A.D.3d at 376, 780 N.Y.S.2d 770;72 N.Y. Jur. 2d, Interest and Usury § 41).

The parties' remaining contentions are without merit.