17-19 W. 34th St. Realty Co. v. Svetlana Yampolsky, D.D.S., P.C.

• Decision Date: 10 June 2022
• Docket Number: MOTION SEQ. No. 007,Index No. 160866/2020
• Citation: 2022 NY Slip Op 31839 (U)
• Parties: 17-19 WEST 34TH STREET REALTY CO., LLC, Plaintiff, v. SVETLANA YAMPOLSKY, D.D.S., P.C., SVETLANA YAMPOLSKY Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 31839(U)

17-19 WEST 34TH STREET REALTY CO., LLC, Plaintiff, v. SVETLANA YAMPOLSKY, D.D.S., P.C., SVETLANA YAMPOLSKY Defendants.

Index No. 160866/2020, MOTION SEQ. No. 007

Supreme Court, New York County

June 10, 2022

Unpublished Opinion

PRESENT: HON. ARLENE BLUTH Justice

DECISION + ORDER ON MOTION

ARLENE BLUTH, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 145, 146, 147, 148, 149, 150, 151, 152, 153 154, 155, 156 were read on this motion to/for INJUNCTION/RESTRAINING ORDER .

The motion by plaintiff to enjoin non-party Rosen & Deutch D.D.S., P.C. from disbursing funds due under a consulting agreement with defendant Yampolsky is granted.

In connection with plaintiff's post-judgment collection efforts, it moves to enjoin Rosen & Deutch D.D.S., P.C. ("RD") from paying defendant Yampolsky funds due to her under a consulting agreement for thirty days so that plaintiff can attach the payments prior to payment to Yampolsky. Plaintiff contends that RD bought defendant's dental practice and that the agreement provides that defendant is to receive 25% of the gross revenue generated by the practice up to a maximum of $425,000. Plaintiff argues that this provision of the agreement does not constitute wages because it is not contingent on any services provided by Yampolsky.

Plaintiff acknowledges it has been able to execute 10% of the monies paid by RD under the consulting agreement with respect to services provided by Yampolsky but that this amounts to just under $2,000, an insignificant amount compared to the nearly $250,000 judgment entered against defendants.

In opposition, defendants insist that plaintiff cannot garnish her income above the statutory limit. They argue that plaintiff is simply frustrated it cannot collect money from defendants that they do not have and the money plaintiff seeks to attach is not (as plaintiff argues) assets.

Discussion

CPLR 5231:

(a) Form. An income execution shall specify, in addition to the requirements of subdivision (a) of section 5230: (i) the name and address of the person or entity from whom the judgment debtor is receiving or will receive money; (ii) the amount of money, the frequency of its payment and the amount of the installments to be collected therefrom; and (iii) shall contain a notice to the judgment debtor that he or she shall commence payment of the installments specified to the sheriff forthwith and that, upon his or her default, the execution will be served upon the person or entity from whom he or she is receiving or will receive money. Provided however, that if a judgment creditor issues an amended execution pursuant to section five thousand two hundred thirty of this article because the applicable interest rate changes pursuant to section five thousand four of this chapter, the income execution need only specify paragraphs (i) and (ii) of this subdivision.

(b) Issuance. Where a judgment debtor is receiving or will receive money from any source, an income execution for installments therefrom of not more than ten percent thereof may be issued and delivered to the sheriff of the county in which the judgment debtor resides or, where the judgment debtor is a non-resident,

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