Preview
INDEX NO. E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3834152
Book Page CIVIL
Return To: No. Pages: 7
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EFILING INDEX NUMBER
New York, NY 10018
Control #: 202404220622
Index #: E2024006780
Date: 04/22/2024
ATIPANA CREDIT OPPORTUNITY FUND I LP Time: 10:49:04 AM
Farkad Balaya MD PC
Balaya, Farkad
FIVE STAR BANK
State Fee Index Number $165.00
County Fee Index Number $26.00
State Fee Cultural Education $14.25
State Fee Records $4.75 Employee: CW
Management
Total Fees Paid: $210.00
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
NNN ATA
lof7
C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
ATIPANA CREDIT OPPORTUNITY FUND
LLP,
Petitioner,
Vv.
PETITION
Farkad Balaya, MD, PC, Farkad Balaya,
Index No:
Respondent,
Assigned Judge:
FIVE STAR BANK
Garnishee
STATE OF NEW YORK)
COUNTY OF NEW YORK)
Petitioner ATIPANA CREDIT OPPORTUNITY FUND I, LP by its counsel Steven
Zakharyayev,
Petitions the Court as follows:
1 Petitioner ATIPANA CREDIT OPPORTUNITY FUND I, LP (“Petitioner”), judgment
creditor of Respondents/Judgment Debtors Farkad Balaya, MD, PC and Farkad Balaya
(“Judgment Debtors”) commences this special proceeding for an Order, pursuant to CPLR
5225(b) and CPLR 5227, directing FIVE STAR BANK to turn over, deliver and assign all
of its right, title and interest in any and all property being held by Respondent FIVE STAR
BANK for, or on behalf of, the Judgment Debtor, to the Petitioner, in an amount that fully,
or partially, satisfied the judgment, including interest, and fees, costs, and disbursements.
THE PARTIES
Petitioner is a limited liability company duly existing under the laws of the State of New
York.
2 of 7
C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
Upon information and belief, Respondent/Garnishee FIVE STAR BANK is an entity doing
business in the State of New York.
Upon information and belief, Respondents/ Judgment Debtor Farkad Balaya, MD, PC is,
and at all times relevant herein has been, a business entity duly organized and existing
under and by virtue of the laws of the State of New York with an address 38 Park St,
Warsaw NY 14569.
Upon information and belief, Respondents/ Judgment Debtor Farkad Balaya resides at 38
Park St, Warsaw NY 14569.
JURISDICTION AND VENUE
Venue and jurisdiction are proper pursuant to CPLR 5221(4) as this Court entered the
Judgment and retains jurisdiction for purposes of enforcement thereof.
GOVERNING LEGAL STANDARD
CPLR Sections 5225(b) and 5227 authorize this Court, in a special proceeding, to direct
turnover of money to a judgment creditor like Petitioner where the money is held by, or
owed to, a third party on behalf of judgment debtor(s).
CPLR 5225(b) states:
Property not in the possession of judgment debtor. Upon a special
proceeding commenced by the judgment creditor, against a person
in possession or custody of money or other personal property in
which the judgment debtor has an interest, or against a person who
is a transferee of money or other personal property from the
judgment debtor, where it is shown that the judgment debtor is
entitled to the possession of such property or that the judgment
creditor's rights to the property are superior to those of the
transferee, the court shall require such person to pay the money, or
so much of it as is sufficient to satisfy the judgment, to the judgment
creditor and, if the amount to be so paid is insufficient to satisfy the
judgment, to deliver any other personal property, or so much of it as.
is of sufficient value to satisfy the judgment, to a designated sheriff.
Costs of the proceeding shall not be awarded against a person who
3 0f 7
C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
did not dispute the judgment debtor's interest or right to possession.
Notice of the proceeding shall also be served upon the judgment
debtor in the same manner as a summons or by registered or certified
mail, return receipt requested. The court may permit the judgment
debtor to intervene in the proceeding. The court may permit any
adverse claimant to intervene in the proceeding and may determine
his rights in accordance with section 5239.
9. CPLR 5227 entitled “Payments of debts owed to judgment debtor,” states:
Upon a special proceeding commenced by the judgment creditor,
against any person who it is shown is or will become indebted to the
judgment debtor, the court may require such person to pay to the
judgment creditor the debt upon maturity, or so much of it as is
sufficient to satisfy the judgment, and to execute and deliver any
document necessary to effect payment; or it may direct that a
judgment be entered against such person in favor of the judgment
creditor. Costs of the proceeding shall not be awarded against a
person who did not dispute the indebtedness. Notice of the
proceeding shall also be served upon the judgment debtor in the
same manner as a summons or by registered or certified mail, return
receipt requested. The court may permit the judgment debtor to
intervene in the proceeding. The court may permit any adverse
claimant to intervene in the proceeding and may determine his rights
in accordance with section 5239.
10. Pursuant to Koehler v. Bank of Bermuda, Ltd., 883 N.Y.S.2d 763, 12 N.Y.3d 533 (2009),
the power of a New York Court to issue a judgment ordering the turnover of out-of-state
assets is not limited to judgment debtors, but applies equally to garnishees. See Koehler
y. . Bank of Bermuda, Ltd., 12 N.Y.3d at 539-540 (“the Appellate Division has expressly
held that judgment debtors can be ordered to turn over out-of-state assets under CPLR
Article 52 (see Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., BV., 41 AD3d 25 [1st Dept
2007], Lv denied 10 NY3d 705 [2008]; see also Miller v. Doniger, 28 AD3d 405 [1st
Dept 2006]; Starbare II Partners v. Sloan, 216 AD2d 238 [1st Dept 1995]). ‘[T]he
explicit rationale was that the court could order the defendant judgment debtor to turn
over property because it had personal jurisdiction over defendant’ (Gryphon, 41 AD3d at
40f7
FLEEH2°°HONROE
COUNTY CLERK 0472272023 °P6"'97 AM) C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
31, citing Starbare, 216 AD2d at 239). Recently, the First Department endorsed the
position that “New York courts have the power to command a garnishee present in the
state to bring out-of-state assets under the garnishee’s control into the state’ (Morganthau
V. Avion Resources, Ltd., 49 AD3d 50,54 [1st Dept 2007], mod on other grounds 11
NY3d 383 [2008])”.
RELEVANT BACKGROUND
11 On March 12, 2024, Petitioner recovered a judgment in the Supreme Court of the State of
New York, County of MONROE captioned ATIPANA CREDIT OPPORTUNITY FUND
I, LP v. Farkad Balaya, MD, PC and Farkad Balaya, Index No. E2024001939, wherein
Petitioner entered judgment by confession against Judgment Debtors, jointly and severally,
in the amount of $23,240.46(the “Judgment”).
12. Pursuant to CPLR 5222, Petitioner served upon FIVE STAR BANK an information
subpoena with restraining notice (the “Restraint”), forbidding the sale, assignment, transfer
or interference with any property in FIVE STAR BANK’s possession that is due or may
become due to the Judgment Debtor, because the Petitioner had an interest in such property
as a result of the Judgment.
13 In compliance with CPLR Article 52, Petitioner also served FIVE STAR BANK with
Exemption Claim Forms to be served on the Judgment Debtors. No exemption claims have
been filed by the Judgment Debtors.
14, Based on the examination pursuant to the information subpoena which accompanied the
Restraint (the “Subpoena”), FIVE STAR BANK is retaining at least $11,608.03 in the
name of the Judgment Debtor.
15. The Judgment remains unpaid and wholly unsatisfied, with a balance of $23,240.46
5 of 7
FLEEH2°°HONROE
COUNTY CLERK 0472272023 °P6"'97 AM) C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
16. As Respondent/ Garnishee FIVE STAR BANK is a garnishee by definition under Article
52 of the CPLR, and Petitioner having complied with all of the Article 52 requirements,
Petitioner is entitled to an Order, pursuant to CPLR 5225(b) and CPLR 5227, directing the
turnover of sufficient funds, or such lesser amount as may be held by garnishee.
17. No prior request for such relief has been made.
WHEREFORE, ATIPANA CREDIT OPPORTUNITY FUND I, LP petitions the Court for
an Order, pursuant to CPLR 5225(b) and CPLR 5227, directing FIVE STAR BANK to turn
over all monies and/or property held by FIVE STAR BANK in which the Judgment Debtors
may have an interest up to the judgment amount of $23,240.46, the amount required to satisfy
the Judgment in the above action and for such other and further relief as the Court may deem
just and proper,
Dated: New York, New York
April 11, 2024
/s/ Steven Zakharyayev. Esq.
Steven Zakharyayev, Esq.
The Law Office of Steven Zakharyayev
10 W 37% St, RM 602
New York, NY 10018
(201) 716-0681
Defendants’ Address(es)
Farkad Balaya, MD, PC
38 Park St, Warsaw NY 14569
Farkad Balaya
38 Park St, Warsaw NY 14569
FIVE STAR BANK
220 Liberty Street, PO Box 222 Warsaw, NY 14569-0227
6 of 7
(FREEB2°°HONROE
COUNTY CLERK 0472272024027 AM) C| 2B 94220622 E2024006780
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
VERIFICATION
STATE OF NEW YORK)
COUNTY OF NEW YORK)
GERBIAN KING, being duly sworn, hereby deposes and states the following:
Tam a(n) Manager of Petitioner ATIPANA CREDIT OPPORTUNITY FUND
I, LP in the within action. I have read the foregoing Petition and know the contents thereof; the
same is true to my own knowledge, except as to matters therein stated to be alleged on information
and belief, and as to those matters, I believe them to be true.
The foregoing statements are true under penalties of perjury.
4
GERBIAN KING
ACKNOWLEDGEMENT
STATE OF New York. )
COUNTY OF _ New “foe )
Acai \qth 2024, The foregoing instrument was acknowledged before me by means of
sical presence or [ ] online notarization by GERBIAN KING who is personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his representative capacity,
and that by his signature on the instrument, he executed the instrument.
RASHEMIA SIMONE WILLIAMS
Rel Mrs Sern We Notary Public - State of New York
No. 01W16440652
Qualifi | in New York County
My Commission Expires Sept. 12, 2026
7 of 7
Preview
INDEX NO. E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3834152 Book Page CIVIL Return To: No. Pages: 7 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EFILING INDEX NUMBER New York, NY 10018 Control #: 202404220622 Index #: E2024006780 Date: 04/22/2024 ATIPANA CREDIT OPPORTUNITY FUND I LP Time: 10:49:04 AM Farkad Balaya MD PC Balaya, Farkad FIVE STAR BANK State Fee Index Number $165.00 County Fee Index Number $26.00 State Fee Cultural Education $14.25 State Fee Records $4.75 Employee: CW Management Total Fees Paid: $210.00 State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK NNN ATA lof7 C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ATIPANA CREDIT OPPORTUNITY FUND LLP, Petitioner, Vv. PETITION Farkad Balaya, MD, PC, Farkad Balaya, Index No: Respondent, Assigned Judge: FIVE STAR BANK Garnishee STATE OF NEW YORK) COUNTY OF NEW YORK) Petitioner ATIPANA CREDIT OPPORTUNITY FUND I, LP by its counsel Steven Zakharyayev, Petitions the Court as follows: 1 Petitioner ATIPANA CREDIT OPPORTUNITY FUND I, LP (“Petitioner”), judgment creditor of Respondents/Judgment Debtors Farkad Balaya, MD, PC and Farkad Balaya (“Judgment Debtors”) commences this special proceeding for an Order, pursuant to CPLR 5225(b) and CPLR 5227, directing FIVE STAR BANK to turn over, deliver and assign all of its right, title and interest in any and all property being held by Respondent FIVE STAR BANK for, or on behalf of, the Judgment Debtor, to the Petitioner, in an amount that fully, or partially, satisfied the judgment, including interest, and fees, costs, and disbursements. THE PARTIES Petitioner is a limited liability company duly existing under the laws of the State of New York. 2 of 7 C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 Upon information and belief, Respondent/Garnishee FIVE STAR BANK is an entity doing business in the State of New York. Upon information and belief, Respondents/ Judgment Debtor Farkad Balaya, MD, PC is, and at all times relevant herein has been, a business entity duly organized and existing under and by virtue of the laws of the State of New York with an address 38 Park St, Warsaw NY 14569. Upon information and belief, Respondents/ Judgment Debtor Farkad Balaya resides at 38 Park St, Warsaw NY 14569. JURISDICTION AND VENUE Venue and jurisdiction are proper pursuant to CPLR 5221(4) as this Court entered the Judgment and retains jurisdiction for purposes of enforcement thereof. GOVERNING LEGAL STANDARD CPLR Sections 5225(b) and 5227 authorize this Court, in a special proceeding, to direct turnover of money to a judgment creditor like Petitioner where the money is held by, or owed to, a third party on behalf of judgment debtor(s). CPLR 5225(b) states: Property not in the possession of judgment debtor. Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor's rights to the property are superior to those of the transferee, the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as. is of sufficient value to satisfy the judgment, to a designated sheriff. Costs of the proceeding shall not be awarded against a person who 3 0f 7 C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 did not dispute the judgment debtor's interest or right to possession. Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. The court may permit the judgment debtor to intervene in the proceeding. The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239. 9. CPLR 5227 entitled “Payments of debts owed to judgment debtor,” states: Upon a special proceeding commenced by the judgment creditor, against any person who it is shown is or will become indebted to the judgment debtor, the court may require such person to pay to the judgment creditor the debt upon maturity, or so much of it as is sufficient to satisfy the judgment, and to execute and deliver any document necessary to effect payment; or it may direct that a judgment be entered against such person in favor of the judgment creditor. Costs of the proceeding shall not be awarded against a person who did not dispute the indebtedness. Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. The court may permit the judgment debtor to intervene in the proceeding. The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239. 10. Pursuant to Koehler v. Bank of Bermuda, Ltd., 883 N.Y.S.2d 763, 12 N.Y.3d 533 (2009), the power of a New York Court to issue a judgment ordering the turnover of out-of-state assets is not limited to judgment debtors, but applies equally to garnishees. See Koehler y. . Bank of Bermuda, Ltd., 12 N.Y.3d at 539-540 (“the Appellate Division has expressly held that judgment debtors can be ordered to turn over out-of-state assets under CPLR Article 52 (see Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., BV., 41 AD3d 25 [1st Dept 2007], Lv denied 10 NY3d 705 [2008]; see also Miller v. Doniger, 28 AD3d 405 [1st Dept 2006]; Starbare II Partners v. Sloan, 216 AD2d 238 [1st Dept 1995]). ‘[T]he explicit rationale was that the court could order the defendant judgment debtor to turn over property because it had personal jurisdiction over defendant’ (Gryphon, 41 AD3d at 40f7 FLEEH2°°HONROE COUNTY CLERK 0472272023 °P6"'97 AM) C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 31, citing Starbare, 216 AD2d at 239). Recently, the First Department endorsed the position that “New York courts have the power to command a garnishee present in the state to bring out-of-state assets under the garnishee’s control into the state’ (Morganthau V. Avion Resources, Ltd., 49 AD3d 50,54 [1st Dept 2007], mod on other grounds 11 NY3d 383 [2008])”. RELEVANT BACKGROUND 11 On March 12, 2024, Petitioner recovered a judgment in the Supreme Court of the State of New York, County of MONROE captioned ATIPANA CREDIT OPPORTUNITY FUND I, LP v. Farkad Balaya, MD, PC and Farkad Balaya, Index No. E2024001939, wherein Petitioner entered judgment by confession against Judgment Debtors, jointly and severally, in the amount of $23,240.46(the “Judgment”). 12. Pursuant to CPLR 5222, Petitioner served upon FIVE STAR BANK an information subpoena with restraining notice (the “Restraint”), forbidding the sale, assignment, transfer or interference with any property in FIVE STAR BANK’s possession that is due or may become due to the Judgment Debtor, because the Petitioner had an interest in such property as a result of the Judgment. 13 In compliance with CPLR Article 52, Petitioner also served FIVE STAR BANK with Exemption Claim Forms to be served on the Judgment Debtors. No exemption claims have been filed by the Judgment Debtors. 14, Based on the examination pursuant to the information subpoena which accompanied the Restraint (the “Subpoena”), FIVE STAR BANK is retaining at least $11,608.03 in the name of the Judgment Debtor. 15. The Judgment remains unpaid and wholly unsatisfied, with a balance of $23,240.46 5 of 7 FLEEH2°°HONROE COUNTY CLERK 0472272023 °P6"'97 AM) C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 16. As Respondent/ Garnishee FIVE STAR BANK is a garnishee by definition under Article 52 of the CPLR, and Petitioner having complied with all of the Article 52 requirements, Petitioner is entitled to an Order, pursuant to CPLR 5225(b) and CPLR 5227, directing the turnover of sufficient funds, or such lesser amount as may be held by garnishee. 17. No prior request for such relief has been made. WHEREFORE, ATIPANA CREDIT OPPORTUNITY FUND I, LP petitions the Court for an Order, pursuant to CPLR 5225(b) and CPLR 5227, directing FIVE STAR BANK to turn over all monies and/or property held by FIVE STAR BANK in which the Judgment Debtors may have an interest up to the judgment amount of $23,240.46, the amount required to satisfy the Judgment in the above action and for such other and further relief as the Court may deem just and proper, Dated: New York, New York April 11, 2024 /s/ Steven Zakharyayev. Esq. Steven Zakharyayev, Esq. The Law Office of Steven Zakharyayev 10 W 37% St, RM 602 New York, NY 10018 (201) 716-0681 Defendants’ Address(es) Farkad Balaya, MD, PC 38 Park St, Warsaw NY 14569 Farkad Balaya 38 Park St, Warsaw NY 14569 FIVE STAR BANK 220 Liberty Street, PO Box 222 Warsaw, NY 14569-0227 6 of 7 (FREEB2°°HONROE COUNTY CLERK 0472272024027 AM) C| 2B 94220622 E2024006780 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 VERIFICATION STATE OF NEW YORK) COUNTY OF NEW YORK) GERBIAN KING, being duly sworn, hereby deposes and states the following: Tam a(n) Manager of Petitioner ATIPANA CREDIT OPPORTUNITY FUND I, LP in the within action. I have read the foregoing Petition and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. The foregoing statements are true under penalties of perjury. 4 GERBIAN KING ACKNOWLEDGEMENT STATE OF New York. ) COUNTY OF _ New “foe ) Acai \qth 2024, The foregoing instrument was acknowledged before me by means of sical presence or [ ] online notarization by GERBIAN KING who is personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his representative capacity, and that by his signature on the instrument, he executed the instrument. RASHEMIA SIMONE WILLIAMS Rel Mrs Sern We Notary Public - State of New York No. 01W16440652 Qualifi | in New York County My Commission Expires Sept. 12, 2026 7 of 7