Gilchrist v. Commercial Credit Corp.
| Decision Date | 20 May 1971 |
| Parties | Annie GILCHRIST, Petitioner, v. COMMERCIAL CREDIT CORPORATION, Respondent. |
| Court | New York Supreme Court |
Leonard S. Clark, Westbury, for petitioner, by Carl Jay Nathanson, Westbury.
Petitioner seeks an order 'vacating and setting aside' proceedings to conduct a sale, pursuant to CPLR 5236, of her estranged husband's interest in a residence owned by them as tenants by the entirety and presently occupied by petitioner and her four infant children.
The sale of the property, originally scheduled for May 7, 1971, but stayed pending determination of this proceeding, is for the purpose of satisfying a judgment held by respondent against petitioner's husband in the sum of $502.74 with interest thereon from September 24, 1965.
The petition is grounded upon CPLR 5240 which provides that the Court, at any time, may make an order 'denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement proceeding.'
It has been said that this section of the CPLR 'was clearly intended to empower the courts to prevent unreasonable annoyance and abuse in the use of the provisions of article 52 of the CPLR in enforcing judgments * * * and to be the equivalent * * * of CPLR 3103 (subd. (a)) which empowers the courts to make protective orders with respect to disclosure' (Cook v. H.R.H. Constr. Co., 32 A.D.2d 806, 807, 302 N.Y.S.2d 364, 366, see also, Practice Commentary by Professor David D. Siegel, McKinney's Cons. Laws, Vol 7B, 1969 supplement to § 5236).
The uncontroverted facts revealed by the petition persuade the Court that this is an instance in which the discretionary protective power of the Court, provided by CPLR 5240, should be exercised.
As already noted, petitioner is separated from her husband since 1966, and she resides with her four children, the oldest of whom is ten years of age, in the residence she and her husband own as tenants by the entirety. Petitioner and the children subsist on a grant from the Nassau County Department of Social Services, out of which she pays approximately $185.00 monthly toward the mortgage and related carrying charges on the residence. Her concern, while founded partly on the misapprehension that respondent seeks the sale of Her interest in the property and that she and the children would be immediately forced to vacate the premises, is that, by virtue of the proposed sale, she and her children will lose their interest in the home and be forced to live elsewhere.
Respondent urges in opposition that it seeks the sale only of the judgment debtor's interest and that such a sale...
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