Opinion
Index No. E012021017765
04-12-2022
Mark M. ALTSCHUL, Individually and as The General Partner of Altschul & Altschul, Plaintiff, v. OFFICE OF the COLUMBIA COUNTY SHERIFF and Columbia County, Defendants.
Altschul & Altschul, Attorneys For Plaintiff, Mark M. Altschul, Esq., of counsel, 18 East 12th Street, New York, New York 10003 Murphy Burns, LLP, Attorneys For Defendants, Thomas K. Murphy, Esq., of counsel, 407 Albany Shaker Road, Loudonville, New York 12211
Altschul & Altschul, Attorneys For Plaintiff, Mark M. Altschul, Esq., of counsel, 18 East 12th Street, New York, New York 10003
Murphy Burns, LLP, Attorneys For Defendants, Thomas K. Murphy, Esq., of counsel, 407 Albany Shaker Road, Loudonville, New York 12211
Henry F. Zwack, J.
In this action alleging negligence and conversion by the defendants Office of the Columbia County Sheriff and Columbia County, the defendants move pursuant to CPLR 3211(a)(1)(7) for an order dismissing the complaint of the plaintiff Mark Altschul, individually and as a General Partner of Altschul and Altschul ("Altschul") — asserting that the complaint fails to state a cause of action.
In his complaint, Altschul claims a charging lien under Judiciary Law 475, and seeks punitive damages arising from the execution on a judgment by the Columbia County Sheriff ("Sheriff"). Altschul alleges that he is the attorney of record of the Estate of Clinton F. Steuerwald ("Steuerwald Estate"), that a judgment was entered in the Circuit Court for the County of Broward, Florida ("Steuerwald Judgment"), that he domesticated and docketed the Steuerwald Judgment in the Office of the Clerk of New York County on November 18, 2018 — thereby making the Steuerwald Judgment enforceable in New York — and that on December 6, 2018 the judgment was filed in the Office of the Columbia County Clerk. Altschul alleges that the Sheriff accepted a property execution on August 14, 2020 for the sale of real property within Columbia County, which was submitted by an attorney who the Sheriff knew was not the attorney of record for the Steuerwald Judgment, and the Sheriff then executed on the judgment and distributed the sales proceeds to the same attorney not of record. Altschul's first cause of action alleges negligent conduct by the Sheriff and his second cause of action alleges conversion of the sale proceeds on the execution by the Sheriff. On both causes of action Altschul seeks compensatory and punitive damages.
The property address is 3640 Horseshoe Drive, Valatie, New York.
The Sheriff now moves to dismiss Altschul's complaint, in sum asserting that after the Steuerwald Judgment was domesticated in New York in November 2018 it was amended and distributed and assigned pursuant to a March 6, 2019 Order of the Broward County Circuit Court, Probate Division, to the beneficiaries of the Estate of Robert Carroll ("Carroll Estate"), that the judgment was ultimately assigned to Robert Qualls and Steve Orlando ("Qualls-Orlando"), and that Qualls-Orlando retained Devine & Bruno, LLP (Michael N. Bruno, Esq.) as their attorney to execute on the judgment now assigned to them. The Sheriff argues he executed a sheriff's sale based upon a facially valid Execution filed by Attorney Bruno, and properly released the proceeds of that Execution Sale to Bruno as a proper party. The Sheriff further argues that once the Steuerwald Judgment was assigned and distributed by the Florida Probate Court to the Carroll Estate (and thereafter to Qualls-Orlando) it ceased being an asset of Altschul's client — the Steuerwald Estate — and was no longer a judgment that Altschul could enforce.
For the reasons that follow the Court grants the defendants' motion to dismiss and dismisses the plaintiff's complaint in its entirety.
On a CPLR 3211 motion to dismiss the Court is required to "afford the complaint a liberal construction, accept the facts as true, accord the plaintiff the benefit of every favorable inference and determine only whether the alleged facts fit within any cognizable legal theory" ( Gagnon v Village of Cooperstown, NY, 189 AD3d 1724, 1725 [3d Dept 2020], citations omitted). This said, "where the pleaded facts state a cause of action, documentary evidence may result in a dismissal only where it has been shown that a material fact as claimed by the pleader is not a fact at all and no significant dispute exists regarding it" ( Acquista v New York Life Ins. Co., 285 AD2d 73, 76 [1st Dept 2001], internal quotations and citations omitted).
A review of the supporting documentation offered by the Sheriff shows an "Order Assigning Promissory Note, Amended Final Judgment and Corporate Stock to Estate beneficiary" that was made and entered in the Circuit Court of the 17th Judicial Circuit, Brower County, Florida, Probate Division on March 6, 2019 ("March 2019 Order"). In the March 2019 Order, the Florida Probate Court assigned a Promissory Note dated April 10, 1988 executed by Penster Properties and Penn Steuerwald and the Amended Final Judgment entered by the Court on September 26, 2018 against Penster Properties and Penn Steuerwald from the beneficiaries of the Estate of Clinton Steuerwald to the beneficiaries of the Estate of Robert Carroll—Robert Qualls, ½, Steve Orlando, 1/4 and the Estate of John Steinberg 1/4. Steve Orlando assumed the 1/4 interest from the estate of John Steinberg leaving Qualls and Orlando each holding a ½ interest. Also offered is an August 21, 2019 retainer agreement between Qualls-Orlando and Michael N. Bruno, Esq, and the executions he issued on August 13, 2020 to the Sheriff.
There is presently an action pending seeking the same or similar relief in New York County Supreme Court against the law firm of Devine & Bruno, LLP and Michael Bruno.
Here, the Court is mindful that a domesticated judgment of another state is "merely incidental" to the foreign judgment and "to the extent that the underlying judgment is vacated or modified, the judgment here is similarly affected ... and (can) be accorded no greater effect than the foreign judgment upon which it is based, and subject to the same defenses for purposes of modification or vacatur" ( DeNunez v Bartels, 241 AD2d 414, 416 [1st Dept 1997], citations omitted).
Albeit that Altschul now argues that he is the attorney of record for the Steuerwald Judgment, once that judgment was assigned by the March 2019 Order to the Carroll Estate — and now ultimately assigned to Qualls-Orlando — it was no longer subject to any enforcement by the Steuerwald Estate or by Altschul on behalf of his client, namely the Steuerwald Estate. Further, given that the Sheriff was presented with a facially valid Florida order modifying the Steuerwald Judgment, it cannot be said that he knowingly executed on an invalid judgment expressly to defeat the rights of Altschul. Therefore, the Sheriff owed no duty to Altschul, and cannot be liable for negligence.
Also, as the Sheriff properly points out, Altschul failed to petition the Court for a determination of his rights in the subject property under CPLR 5239, (although he clearly had time to do so prior to the execution) which provides that "any interested person may commence a special proceeding against a judgment creditor or other person with whom a dispute exists to determine the rights in the property or debt." "Any interested person" denotes the statute's purpose of making it an "all inclusive tool for the settlement of almost any problem that may arise in connection with the enforcement of money judgments" (54 NYJUR Enforcement and Execution of Judgments 333, 333 [2022]). Of course, Altschul would then have had the burden of proffering evidence demonstrating that the property was not subject to the lien identified in the notice of sheriff's sale pursuant to the executions offered by Attorney Bruno ( Born to Build, LLC v Saleh , 125 AD3d 706 [2d Dept 2015] ).
Further, Altschul has no tort remedy against the Sheriff or Columbia County. The law is clear that a sheriff is not liable for negligence committed in the execution of a document which ordered seizure, and which was authorized by statute — "(e)ven if the order was void as between the parties, but was valid on its face" ( Iovinella v Sheriff of Schenectady County, 67 AD2d 1037, 1038 [3d Dept 1979]. Simply stated, if the subject Execution is valid on its face, the Sheriff is protected ( Day v Bach , 42 Sickels 56 [1881] ; Gaines v Gaines , 109 AD2d 866 [2d Dept 1985].
Mindful that a sheriff is entitled to "complete protection from liability ... for any proper act done" in the execution of an order valid on its face (Iovinella at 1038), the Court turns to the Altschul's allegations of negligence and gross negligence. Where a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public. Further, governmental actors are immune from negligence claims where a plaintiff has failed to establish a special relationship with the sheriff which created a duty ( Feeney v County of Delaware , 150 AD3d 1355, 1357 [3d Dept 2017] ). In sum, on this record the facts as alleged fail to state a cause of action.
Punitive damages are available in a tort action where the wrongdoing is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive, or is in such conscious disregard of the rights of another that is deemed wilful and wanton (U.S. Trust Corp.v. Newbridge Partners , LLC., 278 AD2d 172 [1st Dept 2000] ). This said, punitive damages are not available against a public corporation, nor does New York recognize an independent cause of action to recover punitive damages (Dixon v William Floyd Union Free Sch. Dist., 136 AD3d 972, 973 [2d Dept 2016], citations omitted).
Altschul has also failed to state a cause of action for a charging lien. Certainly, no charging lien has been judicially determined, as Altschul has made no formal motion for the establishment of the same, nor, on this record, would he be entitled to the same. An attorney is only entitled to a statutory charging lien where there has been an appearance by the attorney in the action which creates or is the source of the funds against which the lien is asserted ( Galvez v Aspen Corp. , 967 F Supp 2d 615 [ED NY 2013] ). Here, Altschul was retained by the Estate Administrator of the Steuerwald Estate only to domesticate the Florida Steuerwald Judgment, and its enforcement in New York. Once the Steuerwald Judgment was assigned by a further Florida Order to the Carroll Estate, Altschul — absent being retained by the Carroll Estate — could have no further role in enforcing the judgment in New York. Given the judicial assignment of the Steuerwald Judgment, Altschul's remedy, if any, could only be against the party who retained him, namely the Steuerwald Estate (and certainly that claim would have to been made before the Steuerwald Estate was judicially distributed in the March 6, 2019 Order).
Inasmuch as the property executed upon was subject to the lien identified in the Sheriff's sale—notwithstanding that the March 6, 2019 Order had not been properly domesticated—and faced with what appeared to be a valid execution, the Sheriff appropriately conducted the sale and appropriately released the proceeds.
Lastly, the Court notes, although the March 2019 Order assigned the Steuerwald Judgment to the Carroll Estate, the beneficiaries of the Carroll Estate (Qualls-Orlando) and their attorney failed to take the steps required by CPLR 5403 to make it enforceable in New York, which thereby rendered the execution on the subject property invalid. "Judgment, as used in CPLR 5403 includes "decrees and orders" (Richard C. Reilly, Practice Commentaries [McKinneys. Cons. Law of NY, C5402:1]). Nor does the record include an authenticated order, and an affidavit stating that the judgment was not obtained by default, that it remains unsatisfied and the amount due and owing — all of which is required to domesticate the foreign March 2019 Order and make it enforceable in New York. Certainly, if Altschul challenged the execution before the sale, the Court would have advised the defendants that the Florida March 2019 Order would require domestication in order to be properly executed. Because the Court did not have the opportunity to review this portion of the proceeding prior to the execution, and the execution has been completed and the proceeds distributed, any further legal arguments are academic.
Accordingly, it is
ORDERED , that the defendants' motion to dismiss is granted and the plaintiff's complaint is dismissed in its entirety.
This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court with NYSCEF, which shall constitute filing and entry under CPLR 2220. Counsel for the defendants is not relieved from the applicable provisions of this rule with regard to Notice of Entry.
Papers Considered, as filed with NYSCEF:
1. Documents No.1 through #5;
2. Documents #6 through #18;
3. Documents #23 through #7;
4. Document #31.