Cahn v. Cahn

• Decision Date: 21 April 1983
• Citation: 462 N.Y.S.2d 535,119 Misc.2d 150
• Parties: Alice A. CAHN, Plaintiff, v. Frederick W. CAHN, Defendant.
• Court: New York City Court

Page 535

462 N.Y.S.2d 535

119 Misc.2d 150

Alice A. CAHN, Plaintiff, v. Frederick W. CAHN, Defendant.

Civil Court of the City of New York,

Bronx County, Special Term,

Part 1.

April 21, 1983.

Axelrod & Warburgh, New York City, for plaintiff; Charles F. Axelrod, New York City, of counsel.

Philip Sherwood Greenhaus, New York City, for defendant.

DECISION AND SUPPLEMENTAL ORDER

ALAN J. SAKS, Judge.

As per this Court's decision of June 2, 1982, defendant moved in Illinois to vacate the 1970 judgment sued on in this action. The Illinois Court at first denied the motion to vacate but enjoined enforcement pending revival of said Illinois judgment, since Illinois law apparently is to the effect that a judgment more than 7 years old may not be enforced until it is formally revived. This Court is now in receipt of the order of the Hon. Richard Weiler, Judge of the Circuit Court for the 16th Circuit, Kane County, Illinois, dated March 23, 1983, reviving the 1970 judgment.

Plaintiff, then, is now entitled to summary judgment on the Illinois judgment of October 6, 1970, which was in the amount of $3,388.00. However, the Court must first resolve an important issue not addressed by the parties--the amount of interest to be awarded in an action on a foreign judgment. Firstly, the court deems interest to have accrued continuously from rendition and not to have been tolled from October 6, 1977 to March 23, 1983, the period during which enforcement of the Illinois judgment was suspended. A stay of the remedy does not suspend the underlying obligation. The second question on the interest issue is: Whose rate applies, Illinois's or New York's? There is some authority for the proposition that Full Faith and Credit requires not only that the New York judgment include interest at the sister state rate but that even after the New York judgment is entered the sister state rate continue to accrue on the New York judgment. So the Second Department held in 1980 in Hospital Service Plan of New Jersey v. Warehouse Production & Sales Employees Union, 76 A.D.2d 882, 429 N.Y.S.2d 31. Cf., Taubenfeld v. Taubenfeld, 198 Misc. 108, 97 N.Y.S.2d 158 (Sup.Ct.N.Y.Co.1950), in which the Court implied that the Polish rate should apply to interest accruing between entry of the Polish judgment and entry of the New York judgment but then proceeded to assume that the Polish rate had been the same as New York's then 6% in the absence of proof to the contrary.

If this Court were to accept the thesis articulated in Hospital Service, it would ask the parties herein to inform the Court of the applicable Illinois rates. (In theory, this Court is supposed to take mandatory judicial notice of Illinois public statutes. CPLR 4511(a). In practice, however, it is not easy to do so without guidance from counsel, because the Bronx County Supreme Court library does not contain such statutes.) Moreover, after judgment has been entered in New York, the plaintiff would have to convince a Sheriff or Marshal not to issue a satisfaction until the judgment was paid at the Illinois rate of interest, if the Illinois rate proved to be higher. If the Sheriff or Marshal did not agree, the plaintiff would probably have to bring a proceeding, such as mandamus, to compel him to collect at the Illinois rates. If the Sheriff or Marshal did so agree, the defendant judgment-creditor would probably, as was done in Hospital Service, bring a...