Judge P. Kevin Castel
DiMare Homestead’s $140,613 judgment against Alpha for nonpayment for tomatoes is unsatisfied. The court denied DiMare an order under Federal Rule of Civil Procedure 69(a) and New York Civil Practice Law and Rules §§5225 and 5233 requiring Alpha to turn over possession of three produce stalls at the Hunts Point Terminal Market. Alpha argued §5225 required DiMare bring a special proceeding against secured creditor Buyer’s Edge Ltd. DiMare countered that the stalls belonged to judgment creditor Vinik, who allegedly agreed with Alpha for full payment of judgment over 20 months. Citing HBE Leasing Corp. v. Frank district court noted that in a special proceeding under §5225(b)applicable through Rule 69(a)a court may grant summary relief where there are no questions of fact but “must conduct a trial on disputed issues of fact on adverse claims in a turnover matter.” Plaintiffs’ motion raised contested fact issues, and potentially complex issues of New York state debtor-creditor law involving multiple unnamed parties. Although Rule 69(a) allows turnover orders to be entered on motions, the court concluded that the issues raised were more properly addressed to a special proceeding in state supreme court.
