Avigdor v. Avigdor
| Docket Number | Index No. 508238/2022 |
| Decision Date | 31 May 2023 |
| Parties | In The Matter of a Proceeding Pursuant To CPLR 5239 and CPLR 5240 David Avigdor and Merrill Avigdor, Petitioners, v. Morton Avigdor, Choice Abstract Corp., as Escrowee, Estate of Elias Gelbwachs, Moshe Twersky, individually and as Executor of the Estate of Elias Gelbwachs, New York City Department of Finance, Office of the Sheriff, John Doe 1 through 6, said fictitious names Intended to designate persons whose identities are unknown to Petitioners including persons having or claiming an interest in or a lien upon the property constituting the subject matter of this action as Judgment Creditors or otherwise, Respondents. |
| Court | New York Supreme Court |
At an IAS Part Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 31st day of May, 2023.
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations)
Opposing Affidavits (Affirmations)
45-46. 54. 82-103
Reply Affidavits (Affirmations)
Petitioners David Avigdor (David) and Merrill Avigdor (Merrill) (collectively, petitioners) move by order to show cause (motion sequence #1) for an order, pursuant to CPLR 5239 and 5240, determining that the escrow funds held pursuant to the so-ordered stipulation dated February 5 2020, under Index No. 2707/19, must be applied to satisfy Respondent Morton Avigdor's (Morton) obligation to them directing that the escrow funds be released to them; awarding legal fees in their favor and against Morton; and temporarily enjoining Respondents Morton, Choice Abstract Corp, as Escrowee (Choice), Estate of Elias Gelbwachs (Gelbwachs Estate), Moshe Twersky, individually and as Executor of the Estate of Elias Gelbwachs (Twersky), New York City Department of Finance (DOF), Office of the Sheriff (Sheriff s Office) and "John Doe 1-6" from releasing or distributing the escrow funds pending further court order.[1]
Petitioners also separately move (motion sequence #2) for an order permitting the mistake, omission, defect or irregularity regarding their service of the order dated November 19, 2022 to be corrected nunc pro tunc or disregarded pursuant to CPLR 2001; extending their time to serve the order dated November 19,2022; and deeming their service of the order as timely, pursuant to CPLR 2004 and 2005.
On January 24, 2014, a judgment in the amount of $750,000.00 was issued in Kings County Surrogates' Court against Morton and in favor of Moshe Twersky, as Executor of the Gelbwachs Estate (Twersky Judgment), resulting from a claim of theft or mishandling by Morton, a New York licensed attorney. The Twersky Judgment was docketed in the Kings County Clerk's Office on September 29, 2014, with Morton, whose address is noted as "957 East 10th St," listed as the debtor, and "Moshe Twersky," listed as the creditor (see NYSCEF Doc No. 6).[2]
Thereafter, in or about 2017, petitioners asserted claims of conversion, embezzlement and misappropriation of funds against Morton, their brother, relating to their late mother Esther Avigdor's estate (Avigdor Estate). By written agreement dated May 17, 2017, the parties agreed to arbitrate the claims. After a series of five arbitration hearings conducted during the period of May 11, 2017 through June 18, 2019, a final arbitration decision was issued on June 27, 2019, awarding the sum of $615,000.00 in favor of petitioners and against Morton (arbitration award) (see NYSCEF Doc No. 7).
Upon learning that Morton had contracted to sell his home located at 957 East 10thStreet, Brooklyn, New York (property) to Joseph and Cecilia Sasson (the Sassons), David commenced a proceeding in this court under Index No. 2707/2019, to confirm the arbitration award and enjoin Morton from selling the property. By so-ordered stipulation dated February 5, 2020 (settlement stipulation), the parties[3] resolved the proceeding by agreeing that Morton could sell the property - - which transpired on February 12, 2020[4]- -and that, upon closing, Morton would deposit into escrow the sum of $700,000.00 (escrow funds) to be held by Choice, as escrow agent. Further, such funds would be held until, in sum, a final non-appealable court order confirming or vacating the arbitration award was issued in a proceeding to be commenced on or before June 27, 2020 (see NYSCEF Doc No. 4, settlement stipulation at ¶¶ 1, 5 and 8).
Thereafter, in March 2020, petitioners commenced a proceeding by order to show cause, under Index No. 506214/2020, to confirm the arbitration award. Morton cross moved to dismiss the petition and vacate the award on the grounds that Jacob was a necessary party in the underlying arbitration. By decision and order dated September 17, 2020, the court adjourned the cross motion, but denied petitioners' motion with leave to renew upon proof that Jacob declined to participate in the arbitration and authorized David to pursue his interest thereat. Petitioners then moved for leave to renew their petition with a supporting affirmation from Jacob, which the court considered together with Morton's cross motion.
By decision and order dated July 30, 2021, the court granted petitioners' application to renew their petition and denied Morton's request for dismissal. Upon renewal, the court found that petitioners established entitlement to confirmation of the arbitration award and that Morton failed to establish a basis for its vacatur. As a result, the court issued a judgment confirming the award, together with costs, disbursements and attorney fees (Avigdor Judgment) (see NYSCEF Doc No. 3). Morton subsequently filed a notice of his intent to appeal the Avigdor Judgment, which he later withdrew by application (see NYSCEF Doc No. 9, Second Department Appellate Division Decision and Order on Application dated December 8, 2021, at 2).
On November 25, 2021, a letter was sent to Choice, on Morton's letterhead and signed by Morton, petitioners, and Jacob, in which said signees jointly requested that Choice release the escrow funds based upon the Avigdor Judgment and in accordance with the settlement stipulation,[5] as follows: $631,000.00 to David and the balance of $69,000.00 to Morton. The letter advised that the Avigdor Judgment was a final order; and that it was not going to be appealed (see NYSCEF Doc No. 10).
By letter dated January 5, 2022, Jacob Feinzeig, attorney for the Gelbwachs Estate and Twersky (collectively, Twersky respondents), advised Choice of the Twersky Judgment and directed Choice not to release the escrow funds pending resolution of his clients' claim to the funds. Counsel advised that approximately $640,000.00 remained due under the Twersky Judgment and that a restraining notice would be sent to Choice (see NYSCEF Doc No. 12).
On March 21,2022, petitioners commenced this proceeding pursuant to CPLR 5239 and 5240, by the filing of a petition via the instant order to show cause. Petitioners argue that the Twersky respondents have no legal or equitable claim to the escrow funds, in that they contend that the Twersky Judgment is only attached to the property and that the Twersky respondents' lien on the real property did not follow the sale proceeds, which, they claim, is personal property. Notwithstanding, petitioners aver that the settlement stipulation and the Avigdor Judgment combined constitute a judicial finding, which puts the sale proceeds out of the Twersky respondents' reach and conclusively determines that the sales proceeds belong to them.
Petitioners also separately move for an order correcting or disregarding their mistake, omission, defect or irregularity in the service of the order dated November 19, 2022 nunc pro tunc, pursuant to CPLR 2001; extending their time to serve the order; and deeming their service of the order as timely, pursuant to CPLR 2004 and 2005.
By the order dated November 19, 2022, the court scheduled oral argument of petitioners' first order to show cause and directed that service of a copy of the order be made by petitioners upon Morton, DOF and the Sheriffs Office by certified mail and upon Choice and the Twersky respondents by e-filing on or before December 2, 2022 (see NYSCEF Doc No. 61). Petitioners state that, although the Sheriffs Office, DOF and Morton were timely served with the order by certified mail on December 2, 2022 (see NYSCEF Doc No. 62), Morton was mistakenly served at the wrong address and that Choice and the Twersky respondents were inadvertently served by e-filing on December 6, 2022, instead of December 2, 2022. As to Morton, petitioners assert that the mistake in service upon him was effectively corrected by his confirmation of receipt of the mailing on December 5, 2022 by email to the court dated December 5, 2022 (see NYSCEF Doc No. 66). Given this, and since petitioners claim that these mistakes were "inadvertent, unintentional, not made in bad faith and non-prejudicial and any delay non-prejudicial and very brief," they ask that the mistakes be corrected or disregarded nunc pro tunc, pursuant to CPLR 2001, 2004 and 2005.
In opposition, Choice argues that petitioners' first order to show cause should be denied, since they lack standing to seek relief under CPLR 5239 or 5240. According to Choice petitioners are neither judgment creditors nor interested persons under the statutes, given their failure to submit a proposed judgment for signature after the decision and order...
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