| Matter of Recovery of Judgment, LLC v Warren |
| 2012 NY Slip Op 00216 [91 AD3d 656] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Recovery of Judgment, LLC, as Assignee of JoshuaWander, Respondent, v Joseph Warren, Appellant. |
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In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Joseph Warrenappeals from an order of the Supreme Court, Kings County (Silber, J.), dated November 3, 2010,which denied his motion to vacate a restraining notice issued pursuant to CPLR 5222, whichrestrained his bank account at JP Morgan Chase.
Ordered that the order is affirmed, without costs or disbursements.
In June 2003 the Supreme Court confirmed an arbitration award and entered judgmentagainst Joseph Warren and in favor of Joshua Wander in the total sum of $28,587.50. Warrenadmitted that he never paid any portion of the judgment to Wander and, after nearly seven years,Wander assigned the judgment to Recovery of Judgment, LLC.
In June 2010 Recovery of Judgment, LLC, served, among other things, a restraining noticepursuant to CPLR 5222 upon JP Morgan Chase (hereinafter Chase), seeking to restrain the fundsheld in an account maintained by Warren. A City Marshal made levy and demand, pursuant toCPLR 5232 (a), upon Warren's account at Chase, and Chase sent Warren, inter alia, a notice ofthe restraint on his account and exemption claim forms pursuant to CPLR 5222-a (b) (3).
Thereafter, Warren moved to vacate the restraint on his account, contending that certainfunds in his account were exempt from restraint or seizure and that he served exemption claimforms on Chase and the plaintiff's attorney pursuant to CPLR 5222-a (c) (1). The Supreme Courtdenied the motion. Warren appeals and we affirm.
In order to claim an exemption pursuant to the procedures set forth in CPLR 5222-a (c) (1),the judgment debtor "shall complete the exemption claim forms, sign them under penalty ofperjury, and serve them within twenty days of the date postmarked on the correspondencecontaining the [restraining and exemption] notice and [exemption claim] forms" (CPLR 5222-a[c] [1]). The judgment debtor "shall serve one completed exemption claim form on the bankinginstitution and the other on the attorney for the judgment creditor" (id.). "The judgmentdebtor may serve the exemption claim forms in person or by first-class mail" (id.).
"If no claim of exemption is received by the banking institution within twenty-five [*2]days after the notice and forms are mailed to the judgment debtor,the funds remain subject to the restraining notice or execution" (CPLR 5222-a [c] [5]). "Failureof the judgment debtor to deliver the executed exemption claim form does not constitute a waiverof any right to an exemption" (id.).
The Supreme Court erroneously determined that Warren did not serve his completedexemption claim forms by first-class mail, as Warren established that they were served byfirst-class mail, with additional certified mail service. In addition, although the affidavits ofservice, which were signed outside of New York State, were not accompanied by a certificateauthenticating the authority of the notary who administered the oath (see CPLR 2309[c]), this omission was not a fatal defect (see CPLR 2001; Smith v Allstate Ins. Co., 38 AD3d522, 523 [2007]).
However, Warren failed to submit evidence establishing the date postmarked on thecorrespondence from Chase which contained the notice and exemption claim forms and,therefore, he failed to demonstrate that the completed exemption forms were served within 20days, or received by Chase within 25 days, of the postmark date (see CPLR 5222-a [c][1], [5]). Accordingly, the Supreme Court properly denied his motion to vacate the restrainingnotice which restrained his bank account at Chase. Dillon, J.P., Florio, Chambers and Miller, JJ.,concur.