Opinion
March 31, 1998
Appeal from the Supreme Court, New York County (Carol Arber, J.).
The stay of enforcement proceedings, as modified by this Court, applied only to those of defendant's assets within the jurisdiction of the Federal Deposit Insurance Corporation (FDIC) ( 243 A.D.2d 307). Since the Federal action involving the FDIC was settled prior to the IAS Court's decision on the instant motion, the stay should have been vacated in its entirety, based on a change in the circumstances that created the need for the stay, and we modify accordingly.
However, as we previously noted, "the mere transfer of interest in the judgment by assignment alone is insufficient to order a levy and Sheriff's sale of specific assets of defendant. The rights, if any, that [plaintiff] acquired in the underlying judgment must be determined in a plenary action." ( Supra, at 307-308. However, if the assets subject to execution of judgment are entirely owned by Coronet, further proceedings may be properly maintained within the already pending action. Thus, although plaintiff is entitled to proceed against all of defendant's assets, it is not entitled to enforce its judgment until its rights pursuant to that judgment have been determined. Therefore, at this juncture, the court correctly refused to order a Sheriff's sale of any of defendant's assets, or to require defendant to turn over the proceeds, if any, it received in the Federal action or provide an accounting of the attorney's fees recovered in such action.
A hearing is not required to determine whether plaintiff's primary purpose in purchasing the judgment was to bring suit thereon in violation of the champerty statute ( see, Limpar Realty Corp. v. Uswiss Realty Holding, 112 A.D.2d 834, 835; Concord Landscapers v. Pincus, 41 A.D.2d 759). Denial of defendant's cross motion to disqualify plaintiff's counsel was a proper exercise of discretion ( see, Petrossian v. Grossman, 219 A.D.2d 587; Hirschfeld v. Stahl, 194 A.D.2d 388). We also reiterate the IAS Court's admonition against abusive motion practice.
We have considered the parties' other arguments for affirmative relief and find them to be without merit.
Concur — Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.