Gletzer v. HarrisGletzer v. Harris
Tannenbaum Helpern Syracuse & Hirschtritt LLP, New York City (David A. Pellegrino and David J. Kanfer of counsel), for Amos Harris, appellant.
Hofheimer Gartlir & Gross, LLP, New York City (David L. Birch of counsel), for Greеnpoint Mortgage Funding, Inc., and another, appellants.
Altman Schochet LLP, New York City (Zalman Schochet of counsel), for Morris I. Gletzer, respondent.
Saxe, J.
These two related appeals present issues arising under
Plaintiff Morris Gletzer obtained a judgment against defendant Amos Harris for $470,437.50 that was docketed on October 23, 1991. Upon its docketing, the 1991 judgment acted as a lien on any real property owned by Harris, which covered a condominium unit at 143 Avenue B in Manhattan. However, Gletzer asserts that, because there were other judgments against Harris that exceeded the equity in the condominium unit and that had priority over his judgment, he could not collect on the judgment by foreclosing on the unit. Gletzer attempted to enforce the judgment in Missouri in 2000, but was met with a challenge by Harris to service of process in the 1991 action. It was not until 2003, following discovery and a hearing, that the Missouri court finally issued a decision rejecting Harris‘s challenge.
Although a money judgment is valid and enforceable for a period of 20 years (
In accordance with
In a separate proceeding brought against Gletzer pursuant to
On the appeal in the
Importantly, it was Harris who initially placed the question of domicile in issue by basing his motion to dismiss on the claim that he was a nondomiciliary of New York. Therefore, there was no reason to impose on Gletzer or on the court a requirement to notify Harris of an intent to address thе issue. On the merits, once a party‘s domicile is established, the party asserting a change of that domicile must prove that change by clear and convincing evidence (see Matter of Pingpank, 134 AD2d 263, 265 [1987]). The stipulated fact that Harris established resi
We address the other issue rаised by Harris, namely, the propriety of granting entry of the renewal judgment nunc pro tunc, in the context of the appeal from the order in the
The language of
“An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment. The judgment in such action shall be designated a renewal judgment and shall be so docketed by the clerk. The lien of a renewal judgment shall take effect upon the expiration of ten years from the first docketing of the original judgment.”
We reject Gletzer‘s reading of the statute. A statute should be construed in light of the problem to be cured and the event that prompted the enactment (McKinney‘s Cons Laws of NY, Book 1, Statutes § 95; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675, 677 [1981], affd 55 NY2d 758 [1981]). Here, in amending
“[a]s long as the new judgment is rendered within the 10-year lien period, the lien that the new judgment carries takes effect not immediately, but only upon the 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” (Siegel, Practice Commentaries, supra).
It seems apparent that the manner in which the Legislature intended to avoid the lien gap was by authorizing judgment creditors to commence actions for renewal judgments early enough that they could аctually obtain the renewal judgment before the first lien had expired.
Also contrary to Gletzer‘s view of his right to priority over intervening mortgagees is
It is important to keep in mind that obtaining a renewal judgment entails more than a ministerial rubber stamp. Gletzer did not have a right to the renewal judgment. Indeed, had he been unable to sustain his burden of establishing the court‘s personal jurisdiction over Harris, he would not have been entitled to any renewal judgment (see Weinstein-Korn-Miller, NY Civ Prac ¶¶ 5014.00, 5014.07 [2d ed]). Thus, at the time his first lien expired on October 23, 2001, all that he held against Harris was a money judgment and a right to seek another 10-year lien, which Harris had a right to, and did, dispute. Any potential lender searching the records in New York after Oсtober 23, 2001 would have had notice only of the already expired, and not renewed, 1991 judgment.
The cases relied upon by the IAS court to conclude that Gletzer‘s lien should be treated as continuing without any “lien gap” are not on point. In Matis v DeLasho (191 Misc 2d 338 [2002]), a judgment debtor who obtained a discharge in bankruptcy in February 2000 thereafter sought to preclude a judgment creditor with a 1992 judgment from obtaining a renewal judgment in order to extend hеr lien against the bankrupt judg
In Matter of Buchardt (114 BR 362 [ND NY 1990]), Merchants National Bank and Trust Co. had obtained a money judgment of approximately $7,000 against Judith Buchardt that was docketed on September 16, 1977, and, following an action for a renewal judgment properly brought in July 1987, it obtained a renewal judgment entered on September 18, 1987. In her 1989 bankruptcy proceeding, Buchardt claimed that the lien was improper because she was entitled to a $10,000 hоmestead exemption under
While the IAS court correctly pointed out that Mansfield State Bank v Cohn (58 NY2d 179 [1983]) is not directly applicable,
“Where a foreign judgment is filed in New York under
CPLR 5402 , that filing is then vacated when the foreign judgment is reversed on intermediate appeal, and a new filing thereafter made when the foreign judgment is reinstated on further appeal, the lien of the judgment creditor in New York dates from the date of the new filing. The inherent power of a court to correct clerical errors in a prior determination may not be invoked to effect the retroactive creation of substantive rights when the rights of third parties have intervened” (id. at 180-181).
It therefore affirmed the denial of the judgment creditor‘s application to file its judgment nunc pro tunc to the original filing date and for a declaration that its judgment had priority оver subsequent judgment creditors’ filings. Critical in Mansfield State Bank was the Court‘s recognition that where a judgment creditor‘s rights have temporarily been lost, even through no fault of the creditor, they may properly be required to give way to those of an intervening creditor.
The nature of nunc pro tunc relief is to correct procedural irregularities where there is no prejudice to third parties (see Jewett v Schmidt, 108 App Div 322, 325 [1905], affd 184 NY 608 [1906]; 49 CJS, Judgments § 124). “[A] judgment or order may not be entered nunc pro tunc in order to record a fact as of a prior date when the fact did not exist” (see 73 NY Jur 2d, Judgments § 67). In specifically addressing the use of the nunc pro tunc device, the Court in Mansfield State Bank made a point of elaborating on why nunc pro tunc relief would have been improper:
“The relief sought by the bank was not to correct any irregularity, mistake, omission or other error; the bank sought the creatiоn of a new lien retroactive to the date of its prior lien which, on its own motion, had been effectively nullified. The would-be invocation of a court‘s inherent power to correct error in a prior judgment is unavailing as a predicate for the creation of new substantive rights. The
rights of the third party title insurance company had effectively intervened” (58 NY2d at 182-183).
Here, petitioners Greenpoint and Coрplestone Finance demonstrated that they properly recorded mortgages establishing liens against Harris‘s condominium unit at a time when the official records indicated that the only extant lien had expired by October 23, 2001. Once the county docket book reflected only Gletzer‘s expired lien, other creditors were fully entitled to rely upon that fact and make mortgage loans on the assumption that their mortgage liens would have priority. They had no obligation to take into account the possibility that Gletzer might, in the future, successfully obtain a new lien against Harris‘s property.
We observe that Gletzer‘s respondent‘s brief on appeal contains assertions of belief and innuendo challenging the bona fides of Greenpoint‘s and Copplestone Finance‘s mortgages. However, we also note thе complete absence of anything of an evidentiary nature in that regard. Barring a showing establishing irregularities in the acquisition or recording of intervening mortgage liens, a judgment creditor whose lien expired and whose renewal judgment was not granted until after the recording of the intervening mortgages should not normally be entitled to the nunc pro tunc treatment of the renewal lien in order to circumvent the priority оf those intervening mortgages. We therefore view as an improvident exercise of discretion the entry of the renewal judgment nunc pro tunc, rather than as of the date Gletzer was finally able to obtain and docket the renewal judgment in 2005.
This discussion does not address remedies that may be available to a judgment creditor in circumstances where it can be established that the judgment debtor intentionally delayed entry of a renewal judgment lien by the use of a sham jurisdictional defense involving the need for an evidentiary hearing, causing the lien‘s loss of priority. We leave the Legislature with the open question of whether the potential problem can be avoided by statutory amendment, perhaps providing for a temporary extension of the lien, or increasing the amount of advance time in which a renewal judgmеnt may be sought, or possibly—as mentioned in the Office of Court Administration memorandum commenting on the 1986 amendment to
Lippman, P.J., Mazzarelli, Williams and Buckley, JJ., concur.
Order, Supreme Court, New York County, entered February 15, 2005, affirmed, with costs. Order, same court, entered June 26, 2007, reversed, on the law, without costs, the petition granted and Gletzer‘s renewal judgment entered as of the date the relief was granted, and petitioners’ mortgages declared to have priority over Gletzer‘s lien.