Verizon New England, Inc. v. Transcom Enhanced Servs., Inc.
| Decision Date | 02 May 2013 |
| Parties | VERIZON NEW ENGLAND, INC., Appellant, v. TRANSCOM ENHANCED SERVICES, INC., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Gibson, Dunn & Crutcher LLP, New York City (Robert L. Weigel, Jason W. Myatt and Anne M. Coyle of counsel), for appellant.
Arent Fox LLP, New York City (Hunter T. Carter and Matthew S. Trokenheim of counsel), for respondent.
In this appeal, we consider whether an at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, constitutes a property interest or debt subject to a CPLR 5222(b) restraining notice. We conclude, based on the nature of the agreement, that the restraining notice is unenforceable and, therefore, affirm the Appellate Division order.
This case arises from efforts by Verizon New England, Inc. (Verizon) to collect a $57,716,714 judgment awarded in January 2009 by the United States District Court for the District of Massachusetts against, inter alia, Global NAPs, Inc. (GNAPs) ( see Global NAPs, Inc. v. Verizon New England Inc., 603 F.3d 71 [1st Cir.2010], cert. denied562 U.S. ––––, 131 S.Ct. 1044, 178 L.Ed.2d 864 [2011] ). On March 6, 2009, Verizon domesticated the judgment.
In its attempt to enforce the judgment, on April 2, 2009, Verizon served a restraining notice and information subpoena on GNAPs and companies with which it did business, one of which was Transcom Enhanced Services, Inc. (Transcom). The restraining notice directed Transcom not “to make or suffer any sale, assignment or transfer of, or interference with, any property in your possession in which [GNAPs] ... has an interest.” Verizon further directed Transcom to “[i]dentify any and all transactions, contracts, or agreements entered into” with GNAPs, and “identify the parties to the transaction; the date of the transaction; the amount of the transaction ... and the goods and services that are the subject of the transaction.” Verizon also requested that Transcom “[i]dentify all receivables ... or any other outstanding obligation owed by you” to GNAPs.
In February 2010, Transcom responded to the questions of the information subpoena. It identified a telephone switch service agreement dated October 21, 2003, that it had entered into with GNAPs. The agreement required a monthly recurring payment of $28,000 per circuit for eight circuits, plus an additional $57,000 per month for additional charges for local origination and termination services. As to “any receivables and outstanding obligations owed” to GNAPs, Transcom responded: Additionally, Transcom annexed a Vendor Balance Detail (VBD), which listed payments made to GNAPs. The VBD reflected that on the day prior to receiving the restraining notice, Transcom received a $246,000 bill from GNAPs, which was paid by four checks issued April 1, 6, 15 and 21, each in the amount of $61,500. The VBD included the bills and payments through November 2009.
In March 2010, Verizon commenced this special proceeding seeking, inter alia, a turnover of property and debts of the judgment debtor held by Transcom, a judgment equal to the amount paid by Transcom to the judgment debtors in violation of the restraining notice, which amounted to $2,454,250, and a finding of civil contempt. Verizon based its claim upon the 2003 agreement between Transcom and GNAPs, which Verizon alleged created an ongoing contractual relationship requiring Transcom to pay GNAPs $281,000 per month. Transcom asserted that it did not violate the restraining notice because the GNAPs invoices predated services, and Transcom was under no obligation to accept those services. Thus, it did not owe any debt to GNAPs, and it did not hold property in which GNAPs had any interest.
During the proceedings, Transcom presented testimony that it had a week to week arrangement with GNAPs that allowed Transcom to decide weekly whether to engage GNAPs for services. Various Transcom witnesses testified that GNAPs sent monthly invoices for proposed services to be rendered the following month, and Transcom prepaid for services each week, rather than paying monthly for services rendered by GNAPs as provided by the 2003 contract.
Supreme Court, inter alia, denied turnover and dismissed the petition with prejudice (27 Misc.3d 1236[A], 2010 N.Y. Slip Op. 51073[U], 2010 WL 2471459 [2010] ). The court credited the testimony given by Transcom's executive officers and concluded “that there is no property or debt in the instant matter subject to a restraining order, levy or turnover pursuant to Article 52 of the CPLR” (2010 N.Y. Slip Op. 51073[U], 2010 WL 2471459, *4). Verizon appealed.
In a 3–2 decision, the Appellate Division affirmed the judgment (98 A.D.3d 203, 948 N.Y.S.2d 245 [1st Dept.2012] ). The majority recognized “that a restraining notice is effective only if, at the time of service, the third party on whom the notice is served owes a debt to, or is in possession of property of, the judgment debtor” ( id. at 204, 948 N.Y.S.2d 245). However, the majority went on to observe that Transcom “owed no debt, but rather held a credit balance with GNAP[s] [and] the undisputed modified agreement between [the parties] dispensed with any contractual obligations or ‘bundle of rights' that could be considered attachable property” ( id. at 207, 948 N.Y.S.2d 245). The two-Justice dissent concluded that GNAPs “had a ‘future interest’ in payments from Transcom that constituted property ... which was subject to restraint” ( id. at 217, 948 N.Y.S.2d 245). Verizon appeals to this Court pursuant to CPLR 5601(a).
A party seeking to enforce a judgment may seek to restrain or prohibit the transfer of a judgment debtor's property in the hands of a third party pursuant to CPLR 5222(b). Section 5222(b) states in relevant part,
“A restraining notice served upon a person other than the judgment debtor or obligor is effective only if, at the time of service, he or she owes a debt to the judgment debtor or obligor or he or she is in the possession or custody of property in which he or she knows or has reason to believe the judgment debtor or obligor has an interest ... or that the judgment debtor or obligor has an interest in specified property in the possession or custody of the person served” (emphasis added).
All such property or debt which thereafter comes into the possession or custody of such person is subject to the restraining notice ( see id.). Section 5201(a) and (b) provide that “[a] money judgment may be enforced against any debt, which is past due or which is yet to become due,” or “any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested.”
The Appellate Division here affirmed the Supreme Court's findings of fact, which are supported by the record ( see Arthur Karger, Powers of the New York Court of Appeals § 13:10 at 489 [21 N.Y.3d 71][3d ed. rev. 2005] [] ). The affirmed findings established that Transcom prepaid for its service, and as such, there was no debt past due or yet to become due under the definition of CPLR 5201(a). The only remaining issue is whether Transcom's oral agreement with GNAPs is an attachable property interest subject to restraint.
In ABKCO Indus. v. Apple Films, 39 N.Y.2d 670, 385 N.Y.S.2d 511, 350 N.E.2d 899 (1976), we recognized that a contractual agreement could constitute contingent property interests attachable and...
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