Borges v. Placeres

DECISION & ORDER Plaintiff/Judgment Creditor Jose Borges moved, pursuant to CPLR 5225 and 5240, to compel assignment of Defendant/Judgment Debtor Alfred Placeres’s potential legal malpractice claim against Defendant’s friend and former attorney to satisfy Plaintiff’s judgment (motion sequence 023). In a June 27, 2018 decision and order, (Borges v. Placeres, 60 Misc 3d 1033 [Civ Ct NY County 2018], the “Order”), the Court granted the motion and compelled assignment of the claim. Defendant now moves by order to show cause: (1) pursuant to CPLR 5015(a)(4), to vacate the Order nunc pro tunc for lack of jurisdiction; pursuant to CPLR 2221(d), to reargue the Order; and (3) for an order directing Plaintiff to withdraw the action commenced as assignee (mot seq 024).¹ As detailed below, reargument is granted, and the Court adheres to its original determination.²I. Defendant’s motion to vacate CPLR 5015 for lack of jurisdictionDefendant argues, pursuant to CPLR 5015(a)(4), that the Court should vacate the Order because it lacked jurisdiction.³ Defendant is correct that both CPLR 5225(b) and CPLR 5227 require the commencement of a special proceeding. However, unlike CPLR 5225(b), which pertains to property not in a judgment debtor’s possession, CPLR 5225(a) pertains to “[p]roperty in the possession of judgment debtor” and “requires only a “motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession or custody of money or other personal property in which he has an interest” (Order at 5; see Higgitt, Practice Commentaries, CPLR C5225:3; C5225:2 [Westlaw] ["If the judgment debtor has control of the property, wherever it is, and the court has personal jurisdiction over the judgment debtor, the court can compel the judgment debtor to deliver that property."]). Accordingly, this branch of Defendant’s motion to vacate/reargue is denied.⁴The Court held that “[p]roperty in the possession of judgment debtor” included “future and/or unvested rights, including…a legal malpractice claim which has not yet been filed” (Order at 5, citing CPLR 5201[b]). Thus, reading the statutes together, the Court possessed jurisdiction to issue the Order because Plaintiff, a judgment creditor, properly filed a motion seeking property — the cause of action for legal malpractice — which Defendant possessed. To the extent that Defendant argues that the Court’s invocation of CPLR 5227 also required a special proceeding, the Court cited that provision to illustrate that our legislature and courts have construed the CPLR’s post-judgment enforcement provisions liberally (Order at 6). It was not, unlike CPLR 5225(a), the primary authority for the Court’s holding.II. Defendant’s motion to reargue (CPLR 2221[d])A. AssignmentDefendant’s remaining arguments are made pursuant to CPLR 2221(d). The proponent of a motion to reargue must establish facts or law which the court overlooked or misapprehended in its original decision (see CPLR 2221[d][2]); People v. D’Alessandro, 13 NY3d 216, 219 [2009]). Defendant first argues that the Court engaged in “butchery of the plain language requirements of CPLR 5225(a)” by compelling assignment of the cause of action to Plaintiff rather than directing turnover to a sheriff for a sale at auction (Def Reply Memo at 40).⁵This is the first time that Defendant has asserted this argument, despite Plaintiff having explicitly argued in the original moving papers for either a direct assignment of the cause of action pursuant to CPLR 5225(a) and 5240 based on Defendant’s conduct or assignment to the sheriff (see Def Exh B