Gaines v. Gaines

• Decision Date: 25 March 1985
• Parties: Albert L. GAINES, Appellant, v. Leola M. GAINES, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 61

487 N.Y.S.2d 61

109 A.D.2d 866

Albert L. GAINES, Appellant, v. Leola M. GAINES, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

March 25, 1985.

Melvin Smith, Yorktown Heights (Harvey M. Sklaver, New York City, of counsel), for appellant.

John H. Hersh, Peekskill, for respondents.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for falsely, maliciously and improperly issuing a restraining notice and executions, plaintiff appeals from an order of the Supreme Court, Westchester County, dated February 25, 1983, which granted defendant Hersh's motion to dismiss the complaint for failure to state a cause of action.

Order affirmed, with costs.

Among the provisions of the underlying judgment of divorce, dated April 2, 1982 (MARBACH, J.), was an award of counsel fees to defendant wife Leola Gaines against plaintiff husband in the sum of $2,500. A copy of that judgment was served on plaintiff's former attorney on April 9, 1982. On or about April 15, 1982, defendant Jerome Hersh, acting as the wife's counsel, served a restraining notice on IBM Corp., plaintiff's employer, and on the Marine Midland Bank, N.A., which in turn levied upon plaintiff's property, effectively tying up his funds and making it impossible for him to pay his creditors. Hersh also stated to the Sheriff in an execution that a judgment had been issued to him as a judgment creditor against plaintiff in the sum of $2,500.

Upon learning of Hersh's action, plaintiff moved for an order of vacatur (inaccurately referring to Hersh's restraining notice as an order of attachment) and obtained an order temporarily staying proceedings pending a hearing. The order to show cause was served on Hersh on April 27, 1982. On that same date, Hersh caused a properly designated execution to be issued. Plaintiff thereafter commenced the instant action against defendants Leola Gaines, her attorney defendant Hersh and the Commissioner-Sheriff of the Department of Public Services for the County of Westchester, for falsely, maliciously and improperly issuing a restraining notice and property executions on two separate occasions when, in fact, no underlying judgment had been entered. Defendant Hersh moved to dismiss the complaint for failure to state a cause of action. Plaintiff now appeals from the granting of said motion.

While defendant Hersh's attempts at enforcement were far from exemplary, plaintiff has failed to allege facts sufficient to make out tortious or malicious conduct on the part of Hersh.

It is well settled that alimony and child support awarded in a matrimonial decree do not become a judgment debt enforceable by execution until the award is first reduced to judgment pursuant to Domestic Relations Law § 244 (see McGovern v. Blaha, 496 F.Supp. 964; Matter of Mason v. Belski, 82 A.D.2d 939, 440 N.Y.S.2d 747, lv. denied 54 N.Y.2d 609, 445 N.Y.S.2d 1027, 429 N.E.2d 835; Tannenberg v. Beldock, 68 A.D.2d 307, 416 N.Y.S.2d 808; Snow v. Snow, 8 A.D.2d 516, 190 N.Y.S.2d 902, rearg. denied 9 A.D.2d 629, 191 N.Y.S.2d 367; Bank of Lake Placid v. Rhino, 111 Misc.2d 639, 444 N.Y.S.2d 562; Melchore v. Melchore, 212 N.Y.S.2d 213). A party may not execute on arrears accrued pursuant to a divorce judgment without first reducing them to a money judgment (see Wolfe v. Wolfe, 86 Misc.2d 313, 315-316, 382 N.Y.S.2d 245, rev'd. on other grounds 64 A.D.2d 700, 407 N.Y.S.2d 568). It bears noting that the instant case is not the typical case in which Domestic Relations Law § 244 comes into play. Inasmuch as alimony and support arrears are not the subject of the instant appeal, our decision herein does not in any way conflict with established precedent. Nor does it constitute an attempt to sanction an ex parte entry of judgment against a defaulting spouse for arrears in obligations fixed by a prior court order (see St. Germain v. St. Germain, 25 A.D.2d 568, 267 N.Y.S.2d 789).

While there is authority for the applicability of Domestic Relations Law § 244 to arrears of counsel fees (see Mulligan v. Mulligan, 79 A.D.2d 721, 434 N.Y.S.2d 737, aff'd. 54 N.Y.2d 614, 442 N.Y.S.2d 502, 425 N.E.2d 890; Mittman v. Mittman, 30 A.D.2d 867, 293 N.Y.S.2d 10 aff'd 24 N.Y.2d 826, 300 N.Y.S.2d 842, 248 N.E.2d 593), this merely illustrates that the manner in which defendant Hersh attempted to enforce the award of counsel fees contained in the final judgment of divorce was improper. It does not necessarily follow that plaintiff's action was properly based. What cannot be lost sight of is the fact that prompt service of a restraining order was imperative in view of the trial court's finding that plaintiff had already stolen his wife's portion of their stock dividends (see Seraita v. Seraita, 93 A.D.2d 725, 461 N.Y.S.2d 21). While defendant Hersh's method of enforcement was far from perfect, plaintiff could have moved for a protective order pursuant to CPLR 5240. Plaintiff failed to avail himself of this remedy and chose instead to commence an action for damages predicated on allegations of malicious falsehood.

Inasmuch as plaintiff has failed to allege facts sufficient to support a claim of malice or an attempt on defendants' part to pervert legal process in order to procure some collateral advantage or corresponding detriment to plaintiff, he has failed to set forth the requisite elements of prima facie tort (see Miller v. Beck, 82 A.D.2d 912, 440 N.Y.S.2d 691) or abuse of process (see Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 343 N.E.2d 278; Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333). Absent any allegation of fraudulent, malicious or tortious conduct on the part of defendants, defendant Hersh sustained his burden, on the motion to dismiss the...