Judgment enforcement against personal property often is difficult. Enforcement against real property has certain advantages, including that it cannot be moved or hidden, ownership records are public, and it can be quite valuable. Further, enforcement against real property can be simple. The judgment creditor’s lawyer signs and delivers a document called an execution to the sheriff, which begins a streamlined process for placing the real property up for sale at a public auction, which can happen in a few months. A court order is not required to sell real property by execution, except if it is the judgment debtor’s homestead. See CPLR 5206(e).

The relative ease of beginning a real property execution does not mean this step should be taken in all cases. There are significant issues to be considered, including the expense of advertising the notice of sale four times, CPLR 5236(c), and the potential liability of the judgment creditor and his counsel for the sheriff’s poundage on a settlement, which is up to 5%. See CPLR 8012(b)(1)-(2); McCloskey v. Brill, 286 A.D. 143 (1st Dept.) (“It has long been the law of this state that an attorney is liable in a plenary action to the sheriff for fees incident to the execution of a process delivered by the attorney to the sheriff”), affirmed 1 N.Y.2d 755 (1955).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]