Putnam County National Bank of Carmel v. Pryschlak

Apr 1, 1996
Versions:226 A.D.2d 358
640 N.Y.S.2d 253
1996 N.Y. App. Div. LEXIS 3361

In an action to foreclose a mortgage, the defendant Joel Gutterman appeals from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated January 23, 1995, as, upon granting his motion for a protective order staying the sale of certain property, conditioned the stay upon his making monthly payments of $2,000 towards the satisfaction of a deficiency judgment previously entered in this action.

Ordered that the order is affirmed insofar as appealed from, with costs.

We reject the appellant’s contention that the Supreme Court improperly conditioned the granting of a protective order under CPLR 5240 staying the plaintiff from executing upon the appellant’s interest in a vacation home owned by the appellant and his wife as tenants by the entirety, upon payment by the appellant of $2,000 per month toward a deficiency judgment previously entered against himself and not entered against his wife. While the sale is to aid in the collection of a debt owed solely by the appellant and not owed by his wife, it is undisputed that any execution upon the appellant’s interest in the vacation home would not affect Mrs. Gutterman’s rights in it (see, V.R.W., Inc. v Klein, 68 NY2d 560), and that the vacation home in question is not the primary family residence (cf., Hammond v Econo-Car of N. Shore, 71 Misc 2d 546). Moreover, the record supports the plaintiffs contention that the appellant is attempting to frustrate the plaintiffs attempts to collect the money owed to the plaintiff by the appellant. Under these circumstances, we cannot say that the Supreme Court improvidently exercised its discretion in conditioning its grant of a protective order upon the appellant’s making the payments in question (see, Matter of AMEV Capital Corp. v Kirk, *359180 AD2d 791; Finnegan v Humes, 252 App Div 385, affd 277 NY 682). Sullivan, J. P., Copertino, Pizzuto and Florio, JJ., concur.