Opinion
2001-10364
Argued November 22, 2002.
December 16, 2002.
In a proceeding pursuant to CPLR 5206(e) to compel the sale of real property to satisfy a money judgment, the appeal is from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered September 28, 2001, as denied those branches of the appellant's motion which were to stay, enjoin, and restrain the petitioner and receiver from, inter alia, selling the subject premises and conducting a hearing to determine the amount and priority of the liens and encumbrances on the premises, and upon his intervention, for leave to serve an answer or move to dismiss the proceeding.
Dollinger, Gonski Grossman, Carle Place, N.Y. (Matthew Dollinger, Floyd G. Grossman, and Mindy Wallach of counsel), for respondent-appellant.
Pitney, Hardin, Kipp Szuch, LLP, New York, N.Y. (Jonathan M. Borg of counsel), for petitioner-respondent.
Before: GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Since the "homestead exemption" (CPLR 5206[b]) was created to protect a homeowner against seizure of his or her dwelling to satisfy a money judgment (see Wyoming County Bank Trust Co. v. Kiley, 75 A.D.2d 477; In re Flatt, 160 B.R. 497), the appellant, as a judgment creditor, was not entitled to assert the exemption as a defense to the instant proceeding. Accordingly, the Supreme Court properly denied the appellant's motion for injunctive relief.
The appellant's three judgment liens, which are superior to the petitioner's lien, provided him with a real and substantial interest in the outcome of the proceeding (see Perl v. Aspromonte Realty Corp., 143 A.D.2d 824; Vantage Petroleum v. Board of Assessment Review OF Town of Babylon, 91 A.D.2d 1037, affd 61 N.Y.2d 695). However, that right did not necessarily involve the right to participate in every aspect of the proceedings (see Matter of Karl Springer Woodworking, 148 Misc.2d 626). Since the appellant was not entitled to assert the homestead exemption, the Supreme Court providently exercised its discretion in limiting the appellant's intervention by not allowing him to serve an answer or move to dismiss the proceeding.
Under the circumstances of this case, the Supreme Court providently exercised its discretion pursuant to CPLR 5206(e) in appointing a receiver to conduct a private sale of the premises (see U.S. v. Vulpis, 967 F.2d 734).
The appellant's remaining contention is without merit.
KRAUSMAN, J.P., McGINITY, SCHMIDT and MASTRO, JJ., concur.