Nardone v. Long Island Trust Co.
| Decision Date | 16 October 1972 |
| Citation | 40 A.D.2d 697,336 N.Y.S.2d 325 |
| Parties | William A. NARDONE, etc., Appellant, v. LONG ISLAND TRUST COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before RABIN, P.J., and HOPKINS, MARTUSCELLO, SHAPIRO and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding to recover damages as the result of the violation by defendant of a restraining notice served upon it pursuant to CPLR 5222, petitioner appeals from (1) an order of the Supreme Court, Nassau County, dated March 15, 1972, and (2) a judgment of said court entered March 29, 1972, both of which denied his motion for summary judgment and granted respondent's motion for summary judgment dismissing the petition.
Order and judgment reversed, on the law; petitioner's motion for summary judgment granted; respondent's cross motion for summary judgment denied; and matter remanded to the Special Term for an assessment of damages in accordance herewith, with $10 costs and disbursements.
After obtaining a money judgment upon an inquest, petitioner's attorney, as an officer of the court, served a restraining notice upon respondent bank pursuant to CPLR 5222. Shortly thereafter the judgment debtor moved to open its default and obtained an ex parte order to show cause staying petitioner from enforcing his judgment pending a hearing on the motion. Respondent was not named in that order; nor was it required that it be served. Nevertheless, respondent, having 'received' a copy of the order, elected to permit the judgment debtor to write checks on the account (which, three days after service of the restraining order, contained sufficient funds to satisfy the judgment), with the result that at the time the sheriff served an execution upon the bank the account was overdrawn.
In our opinion the stay contained in the ex parte order did not serve to suspend the effectiveness of the restraining notice. It merely prohibited petitioner from gaining actual possession of the judgment debtor's funds. Were the rule otherwise, any judgment debtor could obtain such an order, without notice to the court that a restraining notice had been served, or to the judgment creditor, and recover his property theretofore properly made the subject of the restraining notice.
Petitioner properly proceeded by way of a petition (Mazzuka v. Bank of North America, 53 Misc.2d 1053, 280 N.Y.S.2d 495; see, also, Matter of Sumitomo Shoji New York, Inc. v. Chemical Bank, 47 Misc.2d 741, 263 N.Y.S.2d 354, aff...
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