Bank Leumi Trust Co. of N.Y. v. Toms
| Decision Date | 20 May 2014 |
| Citation | 2014 N.Y. Slip Op. 03610,986 N.Y.S.2d 439,117 A.D.3d 555 |
| Parties | BANK LEUMI TRUST COMPANY OF NEW YORK, Plaintiff, v. Newby TOMS, Defendant–Appellant, Emerald Investors Limited, Nonparty Respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Newby Toms, appellant pro se.
Albert PLLC, New York (Craig J. Albert of counsel), for respondent.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered March 21, 2013, which denied defendant's motion to vacate enforcement proceedings relating to the confessions of judgment filed by plaintiff and subsequently assigned to respondent judgment creditor, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 14, 2013, as amended July 29, 2013, which, to the extent appealable, denied defendant's motion to renew, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered June 14, 2013, which, to the extent appealed from as limited by the briefs, granted respondent's cross motion to direct the Clerk to record the assignment of the judgments to respondent, unanimously affirmed, without costs.
Supreme Court correctly rejected defendant's argument that the general release executed by plaintiff, the original judgment creditor, served to extinguish the judgments by confession that the plaintiff had duly filed in 1996. Rather, the court properly read the general release in conjunction with the contemporaneously executed stipulation of settlement agreement between, inter alia, plaintiff and defendant ( see Nau v. Vulcan Rail & Constr. Co., 286 N.Y. 188, 197, 36 N.E.2d 106 [1941];Teletech Europe B.V. v. Essar Servs. Mauritius, 83 A.D.3d 511, 512, 921 N.Y.S.2d 62 [1st Dept.2011] ). Read as a whole, the agreements make clear that defendant was only released from direct liability to plaintiff, which assigned the judgments to respondent judgment creditor's predecessor. Not only does the stipulation of settlement agreement expressly provide that plaintiff assigned the judgments to respondent's predecessor, but defendant's affidavit in support of his original motion acknowledged this assignment, and that respondent's predecessor assigned all of its rights, claims and properties to respondent in December of 2010. Such formal judicial admissions are binding for the purposes of this litigation ( see Figueiredo v. New Palace Painters Supply Co., Inc., 39...
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Arnav Indus., Inc. v., Index No. 13965/1990
...a post-judgment satisfaction, discharge, or enforcement proceeding upon a motion for that relief. E.g., Bank Leumi Trust Co. of New York v. Toms, 117 A.D.3d 555, 556 (1st Dep't 2014); NYCTL 1998-2Trust v. Ackerman, 82 A.D.3d 447, 447 (1st Dep't 2011); Friedman v. Janceski, 255 A.D.2d 227, 2......
- People v. Simmons
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Hearsay
...in the defendant’s answer that the notice of claim was timely constituted a judicial admission. Bank Leumi Trust Co. v. Toms et al. , 117 A.D.3d 555, 986 N.Y.S.2d 439 (1st Dept. 2014). Stipulation of settlement in prior case constitutes a formal judicial admission and is binding in a subseq......
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Hearsay
...that the notice of claim was timely constituted a judicial admission. HEARSAY 5-53 HEARSAY §5:150 Bank Leumi Trust Co. v. Toms et al. , 117 A.D.3d 555, 986 N.Y.S.2d 439 (1st Dept. 2014). Stipulation of settlement in prior case constitutes a formal judicial admission and is binding in a subs......
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Hearsay
...infraction is admissible as evidence-in-chief, but is not conclusive, in a subsequent civil trial. Bank Leumi Trust Co. v. Toms et al., 117 A.D.3d 555, 986 N.Y.S.2d 439 (1st Dept. 2014). Stipulation of settlement in prior case constitutes a formal judicial admission and is binding in a subs......
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Table of cases
...§ 7:70 Bank Hapoalim B.M. v. WestLB AG, 82 A.D.3d 433, 918 N.Y.S.2d 49 (1st Dept. 2011), § 18:70 Bank Leumi Trust Co. v. Toms et al., 117 A.D.3d 555, 986 N.Y.S.2d 439 (1st Dept. 2014), §5:150 Bannister v. Marquis , 87 A.D.3d 1046, 929 N.Y.S.2d 748 (2d Dept. 2011), §16:130 Bannister v. Marqu......