Opinion
1400195
Decided January 20, 2004.
Upon the foregoing papers, defendants' motion for an order, inter alia, directing reimbursement of the poundage heretofore paid by defendant American Golf Corporation to the Marshal of the City of New York is denied.
On or about June 22, 2001, plaintiffs recovered a judgment against defendant American Golf Corporation (hereinafter "Defendant") in the approximate sum of $169,500. Defendant filed a notice of appeal on or about July 20, 2001, and on November 18, 2002, the judgment was reversed and the complaint dismissed. Leave to appeal to the Court of Appeals was denied in June of 2003.
During the pendency of these proceedings, plaintiffs were prepared to serve restraining notices when it appeared that no appeal bond had been filed, but agreed to refrain from executing on the judgment in order to permit defendant to obtain such a bond. No bond having been posted, the Marshal was directed to proceed with the execution of the judgment on December 27, 2001, and on the following day, the latter sent out notices levying on defendant's bank accounts in various local banks. An appeal bond was subsequently filed in January of 2002, but it was not until March of that year that the levies were vacated by order of this court (dated March 13, 2002) upon defendant's posting of an enhanced bond and "payment in full of the Marshal's charges."
In moving to recoup the Marshal's charges from the plaintiff, defendant relies on CPLR 8012(b)(2), which provides, in relevant part, that "[w]here an execution is vacated or set aside, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the execution, and the court may order the party liable therefore to pay the same to the sheriff" (emphasis supplied). Here, defendant asserts that since plaintiffs' judgment was reversed on appeal and the complaint dismissed, the party on whose behalf the Marshal acted ( i.e., plaintiffs) is the statutory "party liable," citing Jewelry Realty Corp. v. Newport Associates, Inc., 64 Misc 2d 409 (Civ.Ct. New York Co. 1970).
The Court disagrees.
By analogy to the situation involving an order of attachment (CPLR 8012[b][3]), it appears to this court that the vacatur or setting aside of an execution presupposes a defect in either the execution or the plaintiff's case, thereby rendering the party at whose insistence the Marshal acted liable for poundage. See, CPLR 8012[b][3]; Liquifin Aktiengesellschaft v. Brennan, 446 FSupp 914, 922 (SDNY 1978). In this case, however, the levy was neither vacated nor annulled ( cf., Matter of Dempsey v. John A. Lynch Co., Inc., 175 Misc 710 [Sup. Ct. Richmond Co. 1940], aff'd, 261 AD 829 [2nd Dept. 1941]) by the appellate court, but rather as a result of defendant's motion practice before this court during the pendency of the appeal. As such, the situation at bar is more nearly the equivalent of a "discharge," as that term is employed in CPLR 8012(b)(3). "'A motion for discharge is generally made by a defendant who concedes, at least arguendo, that the plaintiff has proceeded properly but offers to give plaintiff the equivalent . . . (e.g., a bond) in exchange for a release of the property.'" Liquifin Aktiengesellschaft v. Brennan, supra at 922 (citation omitted). Under these circumstances, since it was an act of the defendant which affirmatively interfered with the Marshal's collection efforts, it is the latter who must bear responsibility of the payment. See, Thornton v. Montefiore Hospital, 117 AD2d 552 (2nd Dept. 1986); compare, Martin v. Consolidated Edison Co., 177 AD2d 548 (2nd Dept. 1991); Hospital Service Plan of NJ v. Warehouse Production Sales Employees Union, 76 AD2d 882 (2nd Dept. 1980). Manifestly, this is not a situation such as that presented in Viggiano v. Viggiano, 136 AD2d 630 (2nd Dept. 1988), wherein the levy of execution was upon property which did not belong to the judgment debtor ( see also, Matter of Associated Food Stores v. Farmer's Bazaar, 126 Misc 2d 541 [Sup. Ct. Nassau Co. 1984]).
In any event, in view of the uncontroverted fact that plaintiffs accorded this defendant every reasonable opportunity to obtain an appeal bond and, in fact, willingly refrained from attempting to secure or collect their judgment for over six months while defendant repeatedly failed to honor its assurances of posting a bond, this Court, in the exercise of its discretionary authority under CPLR 8012(b)(2), has concluded that it is the defendant who should bear the cost of the Marshal's services, as it was the latter's lack of diligence in securing an appeal bond which eventually prompted plaintiffs to levy execution.
Accordingly, it is
ORDERED that defendants' motion is denied in its entirety.