| Matter of Stern v Hirsch |
| 2010 NY Slip Op 09519 [79 AD3d 1046] |
| December 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Heather Stern,Appellant-Respondent, v Randolph Hirsch, Respondent-Appellant, and JP Morgan ChaseBank, N.A., et al., Respondents-Respondents, et al., Respondents. |
—[*1] Weinberg Gross & Pergament, LLP, Garden City, N.Y. (Seth M. Choset and Marc J. Weingardof counsel), for respondent-appellant. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Leonard P. Marinello of counsel), forrespondent-respondent JP Morgan Chase Bank, N.A.
In a proceeding pursuant to CPLR 5206 (e) to compel the sale of Randolph Hirsch's one-halfinterest in a homestead to satisfy a money judgment, the petitioner appeals, as limited by her brief, from(1) so much of an order of the Supreme Court, Nassau County (Murphy J.), entered October 27,2009, as denied the petition and granted that branch of Randolph Hirsch's cross motion which was torestrain her from selling or executing upon the homestead until it is vacant or sold, or unless CherylHirsch predeceases him, and (2) so much of an order of the same court entered April 5, 2010, as, uponreargument, adhered to the original determination, and Randolph Hirsch cross-appeals, as limited by hisbrief, from so much of the order entered April 5, 2010, as denied his second cross motion for theimposition of sanctions against the petitioner and her counsel pursuant to 22 NYCRR 130.1.
Ordered that the appeal from the order entered October 27, 2009, is dismissed, without costs ordisbursements, as that order was superseded by the order entered April 5, 2010, made uponreargument; and it is further,
Ordered that the order entered April 5, 2010, is affirmed insofar as appealed and cross-appealedfrom, without costs or disbursements.
The petitioner won a business arbitration proceeding against Randolph Hirsch (hereinafter therespondent), thereby obtaining a judgment against him dated April 15, 2003, in the total sum of$140,048.23. The judgment was recorded in the Nassau County Clerk's office on April 24, 2003. Atthe same time, the respondent and his wife, Cheryl Hirsch, owned a residential property or "homestead"in [*2]Massapequa (CPLR 5206 [a]), encumbered by a mortgage infavor of JP Morgan Chase Bank, N.A. (hereinafter JP Morgan), which was recorded on August 18,2007.
In order to satisfy her judgment, the petitioner commenced the instant proceeding against therespondent and others seeking, inter alia, to direct the Nassau County Sheriff to notice for sale and sellthe respondent's homestead pursuant to CPLR 5206 (e), and to marshal the proceeds of the sale inaccordance with the parties' respective interests in the property. The respondent cross-moved, interalia, pursuant to CPLR 5240, to restrain the petitioner from selling or executing upon the homesteaduntil it is vacant or is sold, or unless his wife predeceases him.
In an order entered October 27, 2009, the Supreme Court denied the petition and granted thecross motion. Upon the petitioner's motion for reargument, and the respondent's second cross motionfor the imposition of sanctions against the petitioner and her counsel, by order entered April 5, 2010,the Supreme Court granted reargument, but adhered to the original determination, and denied thesecond cross motion for the imposition of sanctions. We affirm the order entered April 5, 2010, insofaras appealed and cross-appealed from.
"CPLR 5240 grants the courts broad discretionary power to control and regulate the enforcementof a money judgment under CPLR article 52 to prevent unreasonable annoyance, expense,embarrassment, disadvantage, or other prejudice to any person or the court" (Matter of Sanders vManufacturers Hanover Trust Co., 229 AD2d 544, 544 [1996]; see Guardian Loan Co. vEarly, 47 NY2d 515, 519 [1979]; Technology Multi Sources, S.A. v Stack Global Holdings, Inc., 44 AD3d931, 932 [2007]; Costello v Casale,39 AD3d 797 [2007]; Paz v Long Is. R.R., 241 AD2d 486, 487 [1997]). Under thecircumstances of this case, the Supreme Court providently exercised its discretion in denying thepetition, and in granting that branch of the cross motion pursuant to CPLR 5240 which was to restrainthe petitioner from selling or executing upon the homestead until it is vacant or is sold, or unless CherylHirsch predeceases the respondent (see Matter of Sanders v Manufacturers Hanover TrustCo., 229 AD2d at 544; Putnam County Natl. Bank of Carmel v Pryschlak, 226 AD2d358 [1996]; cf. Matter of AMEV Capital Corp. v Kirk, 180 AD2d 791, 792 [1992]).
The respondent's remaining contentions on his cross appeal are without merit.
In light of our determination, we need not read the remaining contentions of JP Morgan. Skelos,J.P., Covello, Balkin and Sgroi, JJ., concur. [Prior Case History: 2009 NY Slip Op32552(U).]