Capital Equity Mgmt., LLC v. Sunshine
| Decision Date | 29 November 2021 |
| Docket Number | Index No. 522142/2020 |
| Citation | 73 Misc.3d 1072,158 N.Y.S.3d 798 |
| Parties | CAPITAL EQUITY MANAGEMENT, LLC, Petitioner, v. Nancy T. SUNSHINE, in her official capacity as Kings County Clerk, and Clerk of the Supreme Court, Kings County, Respondent. |
| Court | New York Supreme Court |
Law Offices of Daniel Edward Sully, Brooklyn, for petitioner.
Office of Court Administration, New York City (Mindy Ming-Huai Jeng of counsel), for respondent.
Debra Silber, J. Petitioner Capital Equity Management, LLC (Capital Equity), petitions pursuant to CPLR 7803 (1) for a writ of mandamus compelling respondent Nancy T. Sunshine, in her official capacity as Kings County Clerk and the Clerk of the Supreme Court, Kings County (County Clerk), to process its default judgment application for a renewal judgment in the same manner as she would process any other default judgment application for a sum certain under CPLR 3215 (a), without regard to the fact that the action was brought for a renewal judgment pursuant to CPLR 5014 (1) (motion sequence number 1).
The petition is granted for the reasons which follow, and the County Clerk is directed to process petitioner's default judgment application, which was submitted to the County Clerk on or about September 20, 2020, pursuant to CPLR 5014 (1), entitled Capital Equity Management, LLC v. Rosalie Blair , Index No. 3651/19 (Underlying Action), in the same manner as the County Clerk would process any other default judgment application involving a claim for a sum certain under CPLR 3215 (a). In so directing, the court emphasizes that it has only determined that the default judgment application involves a claim for a sum certain, and that it was made within a year of the purported default, and the court makes no determination as to whether the default judgment application papers submitted by petitioner in the Underlying Action otherwise satisfy the statutory requirements.
In this case, Capital Equity obtained a judgment in a Civil Court, Kings County action for the amount of $11,013.00, that was entered by the Civil Court Clerk on July 6, 2010. A transcript of the Civil Court judgment was filed with the County Clerk for docketing on July 19, 2010. On October 7, 2019, Capital Equity commenced the Underlying Action for a renewal judgment pursuant to CPLR 5014 (1) against the defendant judgment debtor in the Civil Court action. Defendant failed to appear, and on or about December 29, 2019, Capital Equity submitted a default judgment application to the County Clerk. This application was denied because, as a Deputy County Clerk stated on the rejection form to counsel for Capital Equity, "After further discussion with Commissioner Sunshine and her counsel and after review of CPLR 5014 on the issue as to whether a court order is required to file a renewal judgment, it is the position of the County Clerk that a court order is required in order for you to file the renewal judgment."
In order to obtain a court order, a plaintiff has to file an RJI and bring a motion, either for a default judgment pursuant to CPLR 3215 or for summary judgment in lieu of complaint, pursuant to CPLR 3213. This entails an RJI fee of $95 and a motion fee of $45. At oral argument, plaintiff's counsel further argued that a motion can take months.
Capital Equity then commenced a CPLR article 78 proceeding (Capital Equity Management, LLC, v. Sunshine , Index No. 510116/2020) for a writ of mandamus compelling the County Clerk to process the default application in the Underlying Action, claiming that a renewal judgment under CPLR 5014 (1) constitutes a claim for a sum certain under CPLR 3215 (a) which may be made to the County Clerk. This court, in an order dated September 16, 2020, denied this petition because the original judgment was not provided, and the judgment was from Civil Court and there was no showing that it was ever docketed by the County Clerk as is required for a renewal judgment under CPLR 5014 (1).
On or about September 20, 2020, Capital Equity submitted a new application for a renewal judgment on default in the Underlying Action to the County Clerk that included, inter alia, the affidavit of service, an attorney affirmation attesting to the default, an affidavit of facts that contains an assertion that the judgment has not been satisfied in whole or part, and copies of the Civil Court judgment and a transcript of the judgment filed with the County Clerk.1 On or around October 27, 2020, the County Clerk returned the application for a renewal judgment on default, along with a rejection notice dated October 27, 2020, (Doc 6) stating that the application was being returned because 2
In response, Capital Equity commenced this special proceeding on November 9, 2020 and seeks a writ of mandamus compelling the County Clerk to process the default application that was submitted in the underlying action on or around September 20, 2020. In an order dated June 25, 2021, this court denied the County Clerk's motion to dismiss and granted her time to submit an answer. In the answer, the County Clerk asserts that: (1) case law shows that judicial intervention is required to obtain a renewal judgment under CPLR 5014 ; (2) the default application here is not one for a sum certain, because there must be evidentiary proof establishing whether the judgment has been satisfied in the intervening years; (3) the determination to require a court order is not an error of law, nor is it arbitrary and capricious ( CPLR 7803 ); and (4) Capital Equity has failed to join a necessary party, in that the defendant judgment debtor in the Underlying Action was not named in or served with the petition.
"Mandamus ... is an extraordinary remedy that, by definition, is available only in limited circumstances" ( Klostermann v. Cuomo , 61 N.Y.2d 525, 537, 475 N.Y.S.2d 247, 463 N.E.2d 588 [1984] ; see Matter of Mensch v. Planning Bd. of the Vil. of Warwick , 189 A.D.3d 1245, 1247, 138 N.Y.S.3d 621 [2d Dept. 2020], lv denied 33 N.Y.3d 910, 2019 WL 2623972 [2019] ; Matter of Kleinknecht v. Siino , 165 A.D.3d 936, 938, 86 N.Y.S.3d 577 [2018] ). " ‘[T]he remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion’ " ( Matter of Willows Condominium Assn. v. Town of Greenburgh , 153 A.D.3d 535, 536, 60 N.Y.S.3d 233 [2d Dept. 2017], quoting Matter of Brusco v. Braun , 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ). "A discretionary act ‘involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result’ " ( Matter of Willows Condominium Assn. v. Town of Greenburgh , 153 A.D.3d at 536, 60 N.Y.S.3d 233, quoting Tango v. Tulevech , 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ). Given that a writ of mandamus to compel is governed by CPLR 7803 (1), which addresses "whether the body or officer failed to perform a duty enjoined upon it by law," the County Clerk's assertion that its determination was not "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( CPLR 7803 [3] ) involves an argument based on the wrong legal standard (see Matter of Krug v. City of Buffalo , 34 N.Y.3d 1094, 1095 n.1, 117 N.Y.S.3d 157, 140 N.E.3d 531 [2019] ). In view of the standard of review for a writ of mandamus to compel, at issue is whether the County Clerk had a ministerial duty to process Capital Equity's September 20, 2020 default judgment application pursuant to CPLR 5014 (1) in the same manner as one submitted pursuant to CPLR 3215 (a).
Here, the Underlying Action (3651/2019) was an action for a renewal judgment pursuant to CPLR 5014 (1). Although a New York money judgment is enforceable for 20 years (see CPLR 211 [b] ), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203 [a] ). For this reason, the Legislature enacted CPLR 5014 to, inter alia, give a judgment creditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment by the judgment creditor. (see Gletzer v. Harris , 12 N.Y.3d 468, 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224 [2009] ; Rose v. Gulizia , 104 A.D.3d 757, 757-758, 961 N.Y.S.2d 286 [2d Dept. 2013] ). A thorough article on the subject of renewal judgments was recently published, "Bringing Old Judgments Back to Life," NYLJ 6/29/21.
CPLR 5014 calls for the commencement of an action. An action is the case type for prosecuting any civil proceeding other than a special proceeding ( CPLR 103 [b], 105 [b] ) and ( CPLR 3215 [a] ).3 The CPLR provision governing defaults, CPLR 3215, includes those based on a failure to appear in an action, and generally applies to defaults in all civil actions (see Reynolds Sec., Inc. v. Underwriters Bank & Trust Co. , 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106 [1978] ; cf. Matter of Brusco , 84 N.Y.2d at 681, 621 N.Y.S.2d 291, 645 N.E.2d 724 ).4 Given the broad scope of CPLR 3215, and the absence of any statutory provision excluding renewal judgments from its coverage, this court finds that a default on a CPLR 5014 action for a renewal judgment falls within the procedures in CPLR 3215 (a). Under CPLR 3215 (a), a plaintiff may apply for a default judgment with the County Clerk where the application is made within one year of the default and the application is one on a claim for "a sum certain or for a sum which can by computation be made certain." A party is only required to apply for a default judgment from the court "[w]here the case is not one in which the clerk can enter judgment" ( CPLR 3215 [a] ).
Here, there is no dispute that the plaintiff's application was made within a year of the...
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