Schiff Food Products v. Export

• Decision Date: 31 May 2011
• Citation: 924 N.Y.S.2d 158,84 A.D.3d 1346,2011 N.Y. Slip Op. 04654
• Court: New York Supreme Court — Appellate Division
• Parties: SCHIFF FOOD PRODUCTS, CO., INC., appellant,v.M & M IMPORT EXPORT, et al., respondents.

84 A.D.3d 1346

924 N.Y.S.2d 158

2011 N.Y. Slip Op. 04654

SCHIFF FOOD PRODUCTS, CO., INC., appellant,

v.M & M IMPORT EXPORT, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 31, 2011.

Mallow, Konstam & Hager, New York, N.Y. (Jeffrey R. Berke of counsel), for appellant.JOSEPH COVELLO, J.P., RANDALL T. ENG, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

In an action for a renewal judgment pursuant to CPLR 5014, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated January 6, 2009, which denied its motion, in effect, for summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion, in effect, for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate renewal judgment in accordance herewith.

On March 21, 1997, the Supreme Court entered a judgment (hereinafter the judgment) in favor of the plaintiff and against M & M Import Export and Mimi Moskowitz, the defendants in the present action, in the total sum of $129,041.75. On that date, the judgment was also docketed with the Clerk of Nassau County. The judgment was never paid or satisfied, and in November 2007 the plaintiff commenced this action for a renewal judgment pursuant to CPLR 5014. The plaintiff moved, in effect, for summary judgment on the complaint. The Supreme Court denied the motion, concluding that this action was time-barred because it had been commenced more than 10 years after the judgment was docketed. We reverse.

Contrary to the Supreme Court's determination, this action is not time-barred. CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor's real property in a county where the judgment has been docketed with the clerk of that county ( see CPLR 5203 [a]; Matter of Accounts Retrievable Sys., LLC v. Conway, 83 A.D.3d 1052, 921 N.Y.S.2d 575; Matter of Soressi v. SWF, L.P., 81 A.D.3d 1143, 1144, 916 N.Y.S.2d 349). “Once docketed, a judgment becomes a lien on the real property of the debtor in that county” ( Matter of Soressi v. SWF, L.P., 81 A.D.3d at 1144, 916 N.Y.S.2d 349; see CPLR 5203[a]; Matter of Mason v. Belski, 73 A.D.2d 779, 780, 423 N.Y.S.2d 528).

Since a money judgment is viable for 20 years, but a lien on real property is only effective for 10 years ( see CPLR 211[b], 5203[a] ), the Legislature enacted CPLR 5014 to allow a judgment creditor to apply for a renewal of the lien by commencing an action for a renewal judgment ( see CPLR 5014[1]; Gletzer v. Harris, 12 N.Y.3d 468, 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224). As amended in 1986, the statute permits commencement of an action for a renewal judgment during the last year of the pendency of the original lien ( see CPLR 5014; Gletzer v. Harris, 12 N.Y.3d at 473, 882 N.Y.S.2d 386, 909 N.E.2d 1224). As long as the renewal judgment is obtained within the 10–year lien period, the lien that it carries takes effect not immediately, but only upon expiration of the first 10–year lien period, avoiding a lien gap and at the same time giving the judgment creditor a full 10 years of new lien ( see Gletzer v. Harris, 12 N.Y.3d at 474–475, 882 N.Y.S.2d 386, 909 N.E.2d 1224; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C5014:2). However, a judgment creditor may also commence an action for a renewal judgment pursuant to CPLR 5014 “where [10] years have elapsed since the judgment was originally docketed” ( Pangburn v. Klug, 244 A.D.2d 394, 395, 664 N.Y.S.2d 71 [emphasis added]; see Matter of Vinieris, 391 B.R. 707, 711; CPLR 5014[1] ). In that circumstance, the judgment creditor is not prevented from obtaining a renewal judgment, but will not be entitled to avoid a lien gap by operation of CPLR...