Matis v. DeLasho

Apr 19, 2002

Versions:191 Misc. 2d 338

741 N.Y.S.2d 849

2002 N.Y. Misc. LEXIS 271

OPINION OF THE COURT

Joan B. Lefkowitz, J.

Plaintiff brings an action pursuant to CPLR 5014 to renew the lien on a judgment. Defendant opposes on the ground that 11 USC § 524 (a) (2), governing discharges in bankruptcy on debts, prevents renewal of the lien.

*339Plaintiff obtained a money judgment against defendant in 1992 and the lien thereof expires on April 24, 2002. (CPLR 5014 [1].) Defendant obtained a general discharge in bankruptcy listing the debt in favor of plaintiff, on February 8, 2000. 11 USC § 524 (a) (2) states in part that a discharge of a debt “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor.”

While it is true that the within action is a new action (10 Weinstein-Kom-Miller, NY Civ Prac 5014.07) to obtain a new judgment (Pangburn v Klug, 244 AD2d 394 [2d Dept 1997]), its design is to avoid a lien gap between the validity of the judgment which is good for 20 years (CPLR 211 [b]) and the lien status of the judgment, good for 10 years (CPLR 5014 [1]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5014:2, at 456-458; Mem of Off of Ct Admin, 1986 McKinney’s Session Laws of NY, at 3379).

What defendant obtained on discharge in bankruptcy is a discharge from personal liability for preexisting debts but “the discharge does not affect the lien” nor does it affect the judgment creditor’s “right to enforce [the] lien.” (Carman v European Am. Bank & Trust Co., 78 NY2d 1066, 1068 [1991]; see Bank of N.Y. v Magri, 226 AD2d 412 [2d Dept 1996]; Matter of Leonard v Brescia Lbr. Corp., 174 AD2d 621 [2d Dept 1991].) The defendant is not entirely without a remedy. (See Debtor and Creditor Law § 150; Moseley v Milner, 131 Misc 2d 126, 128 n [Sup Ct, Ulster County 1986].) The vitality of the unaffected by bankruptcy, judicial lien is premised upon an in rem right and is not an attempt to impose personal liability on the debtor.

11 USC § 524 (a) (2) applies to debts, not valid liens which pass through bankruptcy unimpaired. (United Presidential Life Ins. Co. v Barker, 31 BR 145 [ND Tex 1983].) The federal statutory purpose is to give debtors a reprieve to prevent postdischarge harassment but, in doing so, it is necessary to strike a balance between the debtors and secured creditors. CPLR 5014 merely extends the lien status of the judgment by granting a renewal judgment to be docketed at the expiration of the original judgment. (Cf. CPLR 5203 [b]; Quarant v Ferrara, 111 Misc 2d 1042 [Sup Ct, Queens County 1981].)

Therefore, the court concludes that the process of obtaining a renewal judgment to continue a prepetition in bankruptcy valid *340lien is not a violation of federal bankruptcy law. The application is granted.