Preview
FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
___________________________________________________
MARIA DELGADO,
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
-against-
Index No. 601610/2015
NELSON ROJAS,
Defendant.
___________________________________________________
Steven G. Yudin, an attorney duly admitted to practice law in the courts of New York
State, under the penalties of perjury, does affirm that:
1. I am Senior Counsel ith the La Offices of Bernard D Ora io PC the
attorneys for plaintiff Maria Delgado.
2. I respectfully submit this affirmation in support of the plaintiff s motion for
an Order pursuant to CPLR 5238 and/or CPLR 5206(e) directing the Nassau County Sheriff
to proceed ith an e ec tion sale of defendant Nelson Rojas non-homestead real property
located in Nassau County and distribute the proceeds to the plaintiff towards satisfaction of
her judgment lien against said property.
Statement of Facts
3. This is a personal injury action in which the defendant defaulted. On July 27,
2016, after an inquest on damages, the plaintiff was awarded judgment against the
defendant in the amo nt of the J dgment A copy of the Judgment is
attached as Exhibit A.
4. No part of the Judgment has been paid or satisfied.
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5. At the time the Judgment was entered and docketed, the defendant owned a
single-family home in Nassau County, located at 136 Henry Street, Valley Stream, New York
the Propert A copy of the deed reflecting the defendant s o nership of the
Property is attached as Exhibit B.
6. Based on a recent appraisal conducted by James R. Gaebler, a New York
licensed appraiser associated with the firm of Aarons & Associates Inc., the appraised value
of the Property is $530,000. A copy of the appraisal report is attached as Exhibit C.
7. There is one open mortgage of record with M&T Bank on the Property with
an estimated remaining balance of $230,000. A copy of the Loan Modification Agreement is
attached as Exhibit D.
8. The defendant owns no other real property in Nassau County. The Property
is the lone asset against which the plaintiff may collect on her Judgment.
9. The defendant does not occupy the Property as his primary residence. The
mortgage documents, dated February 18, 2019, reflect that the defendant resides in
Jericho, New York. See Exhibit D.
Statutory Framework
10. Article 52 of the Civil Practice Law and Rules governs the enforcement of
money judgments.1 Under CPLR 5201(b), a money judgment may be enforced against any
property, real or personal, which could be assigned or transferred. See CPLR 5201(b). A
judgment becomes a lien against real property owned by the judgment debtor in the county
1 A mone j dgment and an order directing the pa ment of mone incl ding motion costs ma be
enforced as prescribed in article fifty-t o CPLR
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where the judgment is docketed as soon as the judgment is docketed. See CPLR 5203(a);
Cadle Co. v. Calcador AD d d Dep t
11. Thus here, by virtue of entry and docketing of the Judgment in this case on
July 27, 2016, the plaintiff acquired a judgment lien against the Property.
12. The plaintiff now seeks a Court Order directing the Nassau County Sheriff to
sell the Property in order to satisfy the Judgment lien. CPLR 5238, in this regard, affords
the court the flexibility to supervise the enforcement of a money judgment. The statute
provides that a court may provide directions to the sheriff with regard to any property or
the proceeds thereof. See CPLR 5238.2
13. There is no statutory requirement of a Court Order directing the Sheriff to
sell non-homestead real property. The real property may be sold by an execution delivered
to the Sheriff. See CPLR 5201(b).
14. There is only a statutory requirement of a Court Order to sell homestead
property, defined as real propert o ned and occ pied [by the judgment debtor] as a
principal residence. Homestead property is subject to a statutory homestead exemption,
which in Nassau County is $170,825. See CPLR 5206(a).
2 CPLR Directions to the sheriff pro ides
Upon motion of an part on notice to the sheriff and all other parties, the court may direct
the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt,
or the proceeds thereof or to file additional ret rns s bject to the pa ment of the sheriff s fees and
expenses. As far as practicable, the court shall direct that notice of the motion be given to any other
judgment creditors, at the addresses shown on the judgment docket and to any persons who have
secured orders of attachment affecting any property or debt, or the proceeds thereof, sought to be
ret rned or released
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15. A homestead order will be issued upon a showing that there is sufficient
equity in the property after application of the exemption and any other prior liens. See
CPLR 5206(e).3
16. The purpose of a CPLR 5206(e) petition is to determine whether the value of
the homestead exceeds the exemption allowed under CPLR 5206(a) and ensure the just
and legal distribution of the sale proceeds. See In re Bellafiore, 492 B.R. at 115 (Bankr.
E.D.N.Y. 2013); see also Westinghouse Credit Corp. v. Central Trust Co. (In re Leonardo), 11
B.R. 453, 455 (Bankr. W.D.N.Y. 1981) (homestead exemption reflects a legislative policy to
provide a debtor with a fresh start). The e emption of a homestead is not oid beca se
the value of the property exceeds [the exemption amount] . . . but the lien of a judgment
attaches to the s rpl s See CPLR 5206(d).
The Plaintiff is Entitled to Relief under CPLR 5238 and/or CPLR 5206(e)
17. The Nassa Co nt Sheriff s polic is that all real property execution sales
involving privately owned homes require a Court Order directing the Sheriff to sell the real
property and addressing whether the homestead exemption applies. A cop of the Sheriff s
policy requirements is attached as Exhibit E.
3 CPLR 5206 (e) provides:
Aj dgment creditor ma commence a special proceeding in the co nt in hich the
homestead is located against the judgment debtor for the sale, by a sheriff or receiver, of a
homestead exceeding one hundred sixty-five thousand five hundred and fifty dollars . . . in value.
The court may direct that the notice of petition be served upon any other person. The court, if it
directs such a sale, shall so marshal the proceeds of the sale that the right and interest of each
person in the proceeds shall correspond as nearly as may be to his rightand interest in the property
sold
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18. Here, the homestead exemption does not apply. The Property is not the
defendant s homestead The defendant does not occ p the Propert as a principal
residence. It is an investment property leased out to tenants. The plaintiff, in fact, was a
tenant living at the Property when she sustained the personal injuries that gave rise to this
action.4
19. The plaintiff has a Judgment lien against the Property and is entitled to relief
under CPLR 5238 and/or CPLR 5206(e) directing the Sheriff to sell the Property as a non-
homestead property at an execution sale. The Property is the lone asset against which the
plaintiff may collect on her Judgment.
20. Respectfully, an Order should be issued directing the Sheriff to proceed with
an execution sale of the Property as a non-homestead property and distribute the sale
proceeds to the plaintiff.
21. For the reasons set forth herein, the plaintiff s motion for relief under CPLR
5238 and/or CPLR 5206(e) should be granted.
Dated: New York, New York
April 19, 2021
___________________________
Steven G. Yudin, Esq.
4 Even if the Property were a homestead property, there would be considerable equity to justify a
homestead Order.
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Preview
FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ___________________________________________________ MARIA DELGADO, Plaintiff, AFFIRMATION IN SUPPORT OF MOTION -against- Index No. 601610/2015 NELSON ROJAS, Defendant. ___________________________________________________ Steven G. Yudin, an attorney duly admitted to practice law in the courts of New York State, under the penalties of perjury, does affirm that: 1. I am Senior Counsel ith the La Offices of Bernard D Ora io PC the attorneys for plaintiff Maria Delgado. 2. I respectfully submit this affirmation in support of the plaintiff s motion for an Order pursuant to CPLR 5238 and/or CPLR 5206(e) directing the Nassau County Sheriff to proceed ith an e ec tion sale of defendant Nelson Rojas non-homestead real property located in Nassau County and distribute the proceeds to the plaintiff towards satisfaction of her judgment lien against said property. Statement of Facts 3. This is a personal injury action in which the defendant defaulted. On July 27, 2016, after an inquest on damages, the plaintiff was awarded judgment against the defendant in the amo nt of the J dgment A copy of the Judgment is attached as Exhibit A. 4. No part of the Judgment has been paid or satisfied. 1 1 of 5 FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021 5. At the time the Judgment was entered and docketed, the defendant owned a single-family home in Nassau County, located at 136 Henry Street, Valley Stream, New York the Propert A copy of the deed reflecting the defendant s o nership of the Property is attached as Exhibit B. 6. Based on a recent appraisal conducted by James R. Gaebler, a New York licensed appraiser associated with the firm of Aarons & Associates Inc., the appraised value of the Property is $530,000. A copy of the appraisal report is attached as Exhibit C. 7. There is one open mortgage of record with M&T Bank on the Property with an estimated remaining balance of $230,000. A copy of the Loan Modification Agreement is attached as Exhibit D. 8. The defendant owns no other real property in Nassau County. The Property is the lone asset against which the plaintiff may collect on her Judgment. 9. The defendant does not occupy the Property as his primary residence. The mortgage documents, dated February 18, 2019, reflect that the defendant resides in Jericho, New York. See Exhibit D. Statutory Framework 10. Article 52 of the Civil Practice Law and Rules governs the enforcement of money judgments.1 Under CPLR 5201(b), a money judgment may be enforced against any property, real or personal, which could be assigned or transferred. See CPLR 5201(b). A judgment becomes a lien against real property owned by the judgment debtor in the county 1 A mone j dgment and an order directing the pa ment of mone incl ding motion costs ma be enforced as prescribed in article fifty-t o CPLR 2 2 of 5 FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021 where the judgment is docketed as soon as the judgment is docketed. See CPLR 5203(a); Cadle Co. v. Calcador AD d d Dep t 11. Thus here, by virtue of entry and docketing of the Judgment in this case on July 27, 2016, the plaintiff acquired a judgment lien against the Property. 12. The plaintiff now seeks a Court Order directing the Nassau County Sheriff to sell the Property in order to satisfy the Judgment lien. CPLR 5238, in this regard, affords the court the flexibility to supervise the enforcement of a money judgment. The statute provides that a court may provide directions to the sheriff with regard to any property or the proceeds thereof. See CPLR 5238.2 13. There is no statutory requirement of a Court Order directing the Sheriff to sell non-homestead real property. The real property may be sold by an execution delivered to the Sheriff. See CPLR 5201(b). 14. There is only a statutory requirement of a Court Order to sell homestead property, defined as real propert o ned and occ pied [by the judgment debtor] as a principal residence. Homestead property is subject to a statutory homestead exemption, which in Nassau County is $170,825. See CPLR 5206(a). 2 CPLR Directions to the sheriff pro ides Upon motion of an part on notice to the sheriff and all other parties, the court may direct the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt, or the proceeds thereof or to file additional ret rns s bject to the pa ment of the sheriff s fees and expenses. As far as practicable, the court shall direct that notice of the motion be given to any other judgment creditors, at the addresses shown on the judgment docket and to any persons who have secured orders of attachment affecting any property or debt, or the proceeds thereof, sought to be ret rned or released 3 3 of 5 FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021 15. A homestead order will be issued upon a showing that there is sufficient equity in the property after application of the exemption and any other prior liens. See CPLR 5206(e).3 16. The purpose of a CPLR 5206(e) petition is to determine whether the value of the homestead exceeds the exemption allowed under CPLR 5206(a) and ensure the just and legal distribution of the sale proceeds. See In re Bellafiore, 492 B.R. at 115 (Bankr. E.D.N.Y. 2013); see also Westinghouse Credit Corp. v. Central Trust Co. (In re Leonardo), 11 B.R. 453, 455 (Bankr. W.D.N.Y. 1981) (homestead exemption reflects a legislative policy to provide a debtor with a fresh start). The e emption of a homestead is not oid beca se the value of the property exceeds [the exemption amount] . . . but the lien of a judgment attaches to the s rpl s See CPLR 5206(d). The Plaintiff is Entitled to Relief under CPLR 5238 and/or CPLR 5206(e) 17. The Nassa Co nt Sheriff s polic is that all real property execution sales involving privately owned homes require a Court Order directing the Sheriff to sell the real property and addressing whether the homestead exemption applies. A cop of the Sheriff s policy requirements is attached as Exhibit E. 3 CPLR 5206 (e) provides: Aj dgment creditor ma commence a special proceeding in the co nt in hich the homestead is located against the judgment debtor for the sale, by a sheriff or receiver, of a homestead exceeding one hundred sixty-five thousand five hundred and fifty dollars . . . in value. The court may direct that the notice of petition be served upon any other person. The court, if it directs such a sale, shall so marshal the proceeds of the sale that the right and interest of each person in the proceeds shall correspond as nearly as may be to his rightand interest in the property sold 4 4 of 5 FILED: NASSAU COUNTY CLERK 04/19/2021 01:57 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/19/2021 18. Here, the homestead exemption does not apply. The Property is not the defendant s homestead The defendant does not occ p the Propert as a principal residence. It is an investment property leased out to tenants. The plaintiff, in fact, was a tenant living at the Property when she sustained the personal injuries that gave rise to this action.4 19. The plaintiff has a Judgment lien against the Property and is entitled to relief under CPLR 5238 and/or CPLR 5206(e) directing the Sheriff to sell the Property as a non- homestead property at an execution sale. The Property is the lone asset against which the plaintiff may collect on her Judgment. 20. Respectfully, an Order should be issued directing the Sheriff to proceed with an execution sale of the Property as a non-homestead property and distribute the sale proceeds to the plaintiff. 21. For the reasons set forth herein, the plaintiff s motion for relief under CPLR 5238 and/or CPLR 5206(e) should be granted. Dated: New York, New York April 19, 2021 ___________________________ Steven G. Yudin, Esq. 4 Even if the Property were a homestead property, there would be considerable equity to justify a homestead Order. 5 5 of 5