Concord Landscapers, Inc. v. Pincus

• Decision Date: 19 March 1973
• Citation: 41 A.D.2d 759,341 N.Y.S.2d 538
• Parties: CONCORD LANDSCAPERS, INC. (Sheila Blackman, assignee), Appellant, v. Harry PINCUS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 538

341 N.Y.S.2d 538

41 A.D.2d 759

CONCORD LANDSCAPERS, INC. (Sheila Blackman, assignee), Appellant, v. Harry PINCUS et al., Respondents.

Supreme Court, Appellate Division, Second Department.

March 19, 1973.

Before RABIN, P.J., and HOPKINS, MARTUSCELLO, LATHAM and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In an action which resulted in the entry of a money judgment against defendants on April 18, 1968, in the District Court of the County of Nassau, First District, the substituted plaintiff (assignee of the original plaintiff) appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated January 19, 1972, which affirmed (one Justice dissenting) an order of said District Court, dated December 29, 1970, granting defendants' motion to (1) set aside an execution upon the judgment dated June 17, 1970, (2) enjoin further proceedings upon the execution and (3) enjoin the Sheriff of Nassau County from selling defendants' real property at public auction.

Orders of the Appellate Term and the District Court reversed, without costs, and defendants' motion denied.

In our opinion, the District Court erred in holding that plaintiff's intent and purpose in bringing enforcement proceedings on the judgment, if such proceedings were necessary, were a violation of section 489 of the Judiciary Law. That section provides in pertinent part: 'No person * * * engaged directly or indirectly in the business of collection and adjustment of claims * * * shall * * * buy or take an assignment of * * * a * * * thing in action * * * with the intent and for the purpose of bringing an action or proceeding thereon.' It has been consistently held that section 489 prohibits the purchase of a judgment by one engaged in the business of collection and adjustment of claims if the purpose thereof is to commence an action or special proceeding thereon (see CPLR 103) and does not prohibit such a purchase for the purpose of enforcing the judgment's collection or pursuing its lien, as for example, by execution or other devices for the enforcement of judgments under CPLR 5201 et seq. (Fay v. Hebbard, 42 Hun 490, 492; Moses v. McDivitt, 88 N.Y. 62, 65; Fairchild Hiller Corp. v. McDonnell Douglas Corp., 28 N.Y.2d 325, 321 N.Y.S.2d 857, 270 N.E.2d 691; Roslyn Sav. Bank v. Jones, 69 Misc.2d 733, 739--741, 330 N.Y.S.2d 954, 959--962; People v. Berlin, 65 Misc.2d 245, 317 N.Y.S.2d 191; People v. Berlin, 66 Misc.2d 1034, 323 N.Y.S.2d 349). Accordingly, the orders must be reversed and defendants' motion denied.

We reach this result with great reluctance since we note with much concern that this case, and many others of a similar nature, involve aspects of a serious problem arising out of the tremendous growth of the suburban areas of Nassau and Suffolk counties. Many people have bought homes there beyond their financial means. They have incurred debts in trying to meet the high cost of living in suburbia and have subjected their homes to possible sale pursuant to levy and execution in payment of unsatisfied judgments. These homeowners' plight has worsened due to the fact that the CPLR abolished the right of redemption which had existed under prior law. The result has been described by Professor David D. Siegel in a Supplementary Practice Commentary on the 1969 amendments to CPLR 5236...