Hammond v. Econo-Car of North Shore, Inc.

• Decision Date: 16 October 1972
• Docket Number: ECONO-CAR
• Citation: 71 Misc.2d 546,336 N.Y.S.2d 493
• Parties: Vera HAMMOND, Petitioner, v.OF the NORTH SHORE, INC., Respondent.
• Court: New York Supreme Court

Page 493

336 N.Y.S.2d 493

71 Misc.2d 546

Vera HAMMOND, Petitioner, v. ECONO-CAR OF the NORTH SHORE, INC., Respondent.

Supreme Court, Special Term, Nassau County.

Oct. 16, 1972.

Rosemary S. Page and Leonard S. Clark, Westbury, for petitioner; Saul R. Fenchel, Glen Cove, of counsel on the brief.

Louis K. Batzar, Rockville Centre, for respondent.

MEMORANDUM

BERTRAM HARNETT, Justice.

Judicial enforcement procedures are not automatic dispensations. Like other aspects of the legal process, they root in justice and fairness. This case focuses on the realistic implications of a judgment creditor's execution by sheriff's sale upon a husband's tenancy by the entirety interest in the family home.

Here, it is Vera Hammond who seeks to vacate an execution and sheriff's sale of her husband's interest in their one family home in Locust Valley, New York, in which she, her 13 year old son and three foster children live. Husband and wife hold as tenants by the entirety.

The threatened sale results from a real property execution levied by respondent Econo-Car of the North Shore, Inc., pursuant to CPLR 5236, in order to satisfy its judgment of $1,373 obtained on September 1, 1966 against Mr. Hammond alone, who is separated from the family and employed in Bayville, New York. Mrs. Hammond's income consists of a foster care allowance of $145 per month per child and supplemental public assistance of $104 per month, from which she pays the monthly mortgage charge of $165.

There is no doubt that the husband's debt is due, albeit from him alone. There is no doubt that hardship afflicts the family. And, there is no doubt that under CPLR 5240 this Court can, in the fundamental interests of justice and fairness, 'make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure'.

A number of factors favor positive exercise of Court discretion under CPLR 5240. Mrs. Hammond has used the property since its purchase in 1965 to maintain the family home for herself and for the children. The Nassau County Social Services Department has, through its allowances, contributed to the mortgage maintenance. The creditor has failed to demonstrate a credible effort to collect from the judgment debtor husband. Moreover, under the authorities, the sale of the husband's interest in the real property would convey a hybrid tenancy in common, with survivorship but no partition rights, to a third party stranger who then could have some conceivable right to use immediately an undivided one-half share of the property. Finnegan v. Humes, 252 App.Div. 385, 387, 299 N.Y.S. 501, 503, affd. 277 N.Y. 682, 14 N.E.2d 389.

The threatened harm to Mrs. Hammond and the infants living with her is solely because of her husband's debt, an obligation which she and the children did not incur, are not legally bound to satisfy, and appear not to have benefitted from.

In Gilchrist v. Commercial Credit Corp., 66 Misc.2d 791, 322 N.Y.S.2d 200 (Albert, J.), the Court relied on its authority under CPLR 5240 to stay an execution upon a husband's tenancy by the entirety interest in the family home,...