| Matter of Accounts Retrievable Sys., LLC v Conway |
| 2011 NY Slip Op 03590 [83 AD3d 1052] |
| April 26, 2011 |
| Appellate Division, Second Department |
| In the Matter of Accounts Retrievable System, LLC, as Assignee ofChase Bank, USA, N.A., Appellant, v Robert Conway, Also Known as Bob Conway, etal., Respondents. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, LLP, Albany, N.Y. (Robert A. Rausch of counsel),for respondent Silvia M. Villa.
In a proceeding pursuant to CPLR article 52 to direct the Sheriff of Dutchess County to sellcertain real property to enforce a money judgment, the petitioner appeals from a judgment of theSupreme Court, Dutchess County (Dolan, J.), dated June 4, 2010, which, in effect, denied thepetition and dismissed the proceeding.
Ordered that the judgment is reversed, on the law, with costs, the petition is granted, and thematter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment directingthe Sheriff of Dutchess County to sell the subject real property to enforce the money judgment.
In September 2007 a money judgment (hereinafter the judgment) in favor of the petitioner'spredecessor in interest and against a "Bob Conway" residing at 166 Route 216, Stormville, NewYork (hereinafter the property), was docketed in Dutchess County. The judgment wassubsequently assigned to the petitioner. In November 2007 "Robert Conway" and KatherineConway conveyed their title to the property to Silvia M. Villa. Although a title search wasperformed in connection with this transaction, the judgment docketed under the name "BobConway" was not discovered and was not satisfied at closing. It is undisputed that the judgmentdebtor "Bob Conway" and the former property owner "Robert Conway" are the same individual.
Ultimately, the petitioner sought to enforce the judgment by delivering an execution to theSheriff of Dutchess County and commencing this proceeding to direct the Sheriff to sell theproperty. Villa filed opposition papers. The Supreme Court, in effect, denied the petition anddismissed the proceeding on the ground that the judgment had not created a lien on the propertybecause it had been docketed under the name "Bob Conway" rather than "Robert Conway," thefull name of the former title owner at issue. We reverse and grant the petition.
CPLR 5203 (a) gives priority to a judgment creditor over subsequent transferees with regardto the debtor's real property in a county where the judgment has been docketed with the clerk ofthat county (Matter of Soressi v SWF, L.P., 81 AD3d 1143, 1144 [2011]). In pertinentpart, a judgment is docketed when the clerk makes an entry "under the surname of the judgmentdebtor . . . consist[ing] of . . . the name and last known address of[the] judgment debtor" (CPLR 5018 [c] [1] [i]). "Once docketed, a judgment becomes a lien onthe real property of the debtor in that county" (Matter of [*2]Soressi v SWF, L.P., 81 AD3d at 1144; see CPLR 5203[a]; Matter of Mason v Belski, 73 AD2d 779, 780 [1979]).
In the instant matter, although the judgment was docketed under the name "Bob Conway"and the name of the relevant title owner at the time the judgment was docketed was "RobertConway," the different first name on the judgment did not render the docketing ineffective tocreate a valid lien against the property. CPLR 5018 explicitly requires that a judgment only bedocketed under the judgment debtor's surname (see CPLR 5018 [c] [1]; Matter ofSoressi v SWF, L.P., 81 AD3d at 1144). "Further, where the first name is reflected in thedocket and does not match the first name of the debtor, but the first names are commonly knownderivatives of one another, the docketing has been held sufficient to create a lien on the debtor'sreal property" (Matter of Soressi v SWF, L.P., 81 AD3d at 1144; see H. R. & C. Co.,Inc. v Smith, 242 NY 267, 270-272 [1926]; see also Matter of Carreras-Negron vGutierrez, 17 AD3d 105 [2005]; cf. We Buy Now, LLC v Cadlerock Joint Venture,LP, 46 AD3d 549, 550 [2007] [judgment not docketed under the correct surname of a titleowner of the subject real property]). Here, the judgment was docketed under the correct surname,and it cannot be argued that "Bob" is not a common derivative of "Robert." Moreover, Villa doesnot contend that the address listed in the judgment was not the debtor's last known address(see CPLR 5018 [c] [1] [i]). Thus, the judgment docketed under the name "Bob Conway"created a valid lien against the property, which was owned by, among others, "Robert Conway"at the time the judgment was docketed (id.; see CPLR 5203 [a]; H. R. & C.Co., Inc. v Smith, 242 NY at 270-272; Matter of Soressi v SWF, L.P., 81 AD3d at1144-1145).
Villa's remaining contention is without merit.
Accordingly, the Supreme Court should have granted the petition and directed the Sheriff tosell the property to enforce the judgment. Covello, J.P., Angiolillo, Dickerson and Hall, JJ.,concur.