| Cadle Co. v Calcador |
| 2011 NY Slip Op 05005 [85 AD3d 700] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Cadle Company, Appellant, v George Calcador et al.,Respondents. |
—[*1] Gregory Messer, Brooklyn, N.Y., for respondent George Calcador. John A. Cannistraci, New York, N.Y., for respondent Wells Fargo Bank, N.A.
In an action for the partition and sale of real property, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated June 28, 2010, which denied that branch ofits motion which was for summary judgment on the complaint and granted that branch of thecross motion of the defendant George Calcador which was for leave to amend his answer.
Ordered that the order is reversed, on the law, with one bill of costs, that branch of theplaintiff's motion which was for summary judgment on the complaint is granted, that branch ofthe cross motion of the defendant George Calcador which was for leave to amend his answer isdenied, and the matter is remitted to the Supreme Court, Kings County, inter alia, to ascertain therights, shares, and interests of the parties in the subject premises, by a reference or otherwise, andthereafter for entry of an appropriate judgment.
On February 4, 2002, a judgment in the amount of $96,266.19 in favor of the United Stateswas docketed against nonparty Jose Calcador (hereinafter Jose) in the office of the Kings CountyClerk, and became a lien on any real property owned by him in Kings County. At that time, Joseand his brother, the defendant George Calcador (hereinafter George), each owned a one-halfinterest in certain real property in Brooklyn (hereinafter the property). In 2003, Jose deeded hisinterest in the property to George. In July 2006, the unsatisfied judgment was assigned to theplaintiff. In June 2007, a mortgage executed by George in favor of the defendant Wells FargoBank, N.A. (hereinafter together the defendants), on the property was recorded. On July 26,2007, the plaintiff executed against Jose's former interest in the property. In September 2007,acting pursuant to the plaintiff's execution, the New York City Sheriff levied on the property, andfollowing a public auction at which the plaintiff was the highest bidder, deeded all such interestas Jose had had in the property as of February 4, 2002, to the plaintiff.
The plaintiff commenced this action seeking partition and sale of the property. Thereafter,the plaintiff moved, inter alia, for summary judgment on the complaint. George cross-[*2]moved, among other things, for leave to amend his answer. TheSupreme Court denied that branch of the plaintiff's motion which was for summary judgment onthe complaint and granted that branch of George's cross motion which was to amend his answer.The plaintiff appeals. We reverse.
As a result of the Sheriff's deed, the plaintiff and George own the subject property as tenantsin common. Contrary to the defendants' contentions, the plaintiff had a valid lien against theproperty owned solely by George when it delivered the execution to the Sheriff because theplaintiff's judgment was docketed at a time when Jose still had an ownership interest in theproperty. Pursuant to CPLR 5203 (a), a judgment becomes a lien against real property as soon asit is docketed (see CPLR 5203 [a]; Ptaszynski v Flack, 263 App Div 831 [1941]).It attaches to any property in which the debtor has an interest at that time (see CPLR5201 [b]), and remains effective against such property for a period of 10 years (see CPLR5203 [a]). Any transfer of the judgment debtor's interest in the property after the judgment isdocketed is ineffective against the judgment creditor (see CPLR 5203 [a]; Phillip v Zanani, 67 AD3d 877,878 [2009]; Matter of Jones v Knowlton, 199 AD2d 871, 872 [1993]; GreenhouseRealty v St. George, 151 AD2d 7, 9 [1989]). That the plaintiff was assigned the judgmentafter it was docketed and/or after Jose deeded his interest to George does not alter the plaintiff'sentitlement to levy on the lien: the assignment of a judgment vests in the assignee all remediesfor its enforcement which were available to the assignor, and an assignee of a judgment creditorentitled to enforce a judgment may do the same (see People ex rel. Hirsch v Weissbrod,178 Misc 177, 178 [1942]). Since the plaintiff's predecessor-in-interest docketed thejudgment on February 4, 2002, when Jose was a co-owner of the subject property, the plaintiffwas thus entitled to execute against Jose's former interest in the property when it did so on July26, 2007 (see Registrato v Corso, 70 Misc 2d 494 [1972]).
"[A] person holding and in possession of real property as joint tenant or tenant in common, inwhich he [or she] has an estate of inheritance, or for life, or for years, may maintain an action forthe partition of the property, and for a sale if it appears that a partition cannot be made withoutgreat prejudice to the owners" (RPAPL 901 [1]; see Arata v Behling, 57 AD3d 925, 926 [2008]; Graffeo v Paciello, 46 AD3d 613,614 [2007]). A plaintiff establishes his or her right to summary judgment on an action forpartition and sale by demonstrating ownership and right to possession of the property (seeArata v Behling, 57 AD3d at 926; James v James, 52 AD3d 474 [2008]; Dalmacy v Joseph,297 AD2d 329, 330 [2002]). Here, the plaintiff made a prima facie showing by submittingevidence that Jose and his brother George each had a one-half interest in the property onFebruary 4, 2002, and by submitting a copy of the Sheriff's deed conveying "all the estate, right,title and interest" which Jose had on that date to the plaintiff. The plaintiff also made a primafacie showing that the property was "so circumstanced that a partition thereof cannot be madewithout great prejudice to the owners" (Chittenden v Gates, 18 App Div 169, 173 [1897];see RPAPL 915, 901 [1]; Graffeo v Paciello, 46 AD3d at 615; Donlon v Diamico, 33 AD3d 841,842 [2006]; Ferguson v McLoughlin, 184 AD2d 294, 295 [1992]).
In opposition, the defendants failed to raise a triable issue of fact rebutting the plaintiff'sprima facie showing or as to the merit of their affirmative defenses (see Pando v Tapia, 79 AD3d 993,995 [2010]). Accordingly, the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the complaint (id. at 995; see Manganiello v Lipman, 74 AD3d667, 668-669 [2010]; Graffeo v Paciello, 46 AD43d at 614-615; Donlon vDiamico, 33 AD3d at 842).
Since George's proposed amendments to the answer were patently devoid of merit, thatbranch of his cross motion which was for leave to amend his answer should have been denied (see Schwartz v Martin, 82 AD3d1201 [2011]).
The parties' remaining contentions are without merit. Rivera, J.P., Balkin, Lott and Austin,JJ., concur.