Cohen Tauber Spievack & Wagner P.C. v Ringel 2024 NY Slip Op 30897(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 153525/2022 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153525/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C., MOTION DATE 08/08/20221 Petitioner, MOTION SEQ. NO. 001 -v- BENJAMIN RINGEL, BR LAKEWOOD, LLC DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for TURNOVER PROCEEDING .
The petition for a turnover is granted and the cross-motion is denied as described below.
Background
Petitioner brings this proceeding for a turnover of respondent Ringel’s membership
interest in respondent BR Lakewood, LLC (“BR”). Petitioner obtained a judgment against Ringel
for $246,306.68 on March 1, 2016. Petitioner contends that no part of this judgment has been
paid.
It explains that in connection with a separate proceeding between Ringel and his sister in
New Jersey, petitioner discovered that Ringel admitted he was the sole owner of BR. Petitioner
also observes that it started a separate action to set aside two transfers of 40% in BR and that
Ringel’s current ownership interest in BR is 60%.
1 Although this proceeding was only transferred to the undersigned in the last few days, the Court recognizes that it has been pending for an absurdly long time before different judges, even though petitioner politely requested that its application be considered. On behalf of the court system, the Court apologizes for the lengthy delay in the resolution of this proceeding. 153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 1 of 5 Motion No. 001
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Respondents cross-move to dismiss on the ground that BR is Ringel’s sole source of
income and is therefore protected. They also observe that they have moved to vacate the
judgment referenced in this petition and so, in the alternative, this proceeding should be stayed.
Ringel submits an affidavit in which he explains that he is the sole member of BR and
that BR owns 50% of another entity called BCR Lakewood (“BCR”). He claims that he earns
about $500,000 a year in compensation from BR for managing properties owned by BCR and
that this is his only source of income.
In reply and in opposition to the cross-motion, petitioner contends that the Court should
order a turnover of Ringel’s 60% interest in BR. Petitioner claims that the pending motion to
vacate the judgment is not a basis upon which this Court should deny the instant petition.
With respect to the statutory exemption claimed by respondent Ringel, petitioner claims
that asserted exemption only applies to earnings of the judgment debtor for his personal services.
It points to filings from New Jersey actions which petitioner claims shows that an outside
management company (called Affiliated Management) actually runs the properties and that
Ringel has been enjoined from running these properties.
Petitioner observes that this makes any income derived from BR “passive income” and
therefore not subject to the exemption upon which he relies. It argues that any earnings Ringel
receives is based on BR’s ownership of BCR Lakewood and are distributions, not income for
personal services.
Discussion
This motion was marked submitted on August 8, 2022 before a different judge. In the
many intervening months, much has changed. Ringel’s motion to vacate the underlying
judgment was denied (NYSCEF Doc. No. 153 in Index No. 152531/2014). It does not appear
153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 2 of 5 Motion No. 001
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that this decision was appealed (no notice of appeal appears on the NYSCEF docket). That
moots respondents’ request for a stay of this proceeding as the judgment against him remains in
effect.
Therefore, the only remaining issue is the extent of the charging order to be awarded to
petitioner as there is indisputably a judgment in its favor against Ringel that has not yet been
satisfied. Moreover, there is no question that Ringel has an interest in BR.
CPLR 5205 exempts certain property from the enforcement efforts of a judgment
creditor. Here, the exemption in dispute is the exemption for income. “Income exemptions. The
following personal property is exempt from application to the satisfaction of a money judgment,
except such part as a court determines to be unnecessary for the reasonable requirements of the
judgment debtor and his dependents. . . 2. ninety per cent of the earnings of the judgment debtor
for his personal services rendered within sixty days before, and at any time after, an income
execution is delivered to the sheriff or a motion is made to secure the application of the judgment
debtor's earnings to the satisfaction of the judgment” (CPLR 5205[d][2]).
“[T]he judgment debtor, bore the burden of proving that the funds at issue were exempt
as earnings for personal services under CPLR 5205(d)(2)” (Swig v Properties Asset Mgt.
Services, LLC, 85 AD3d 427, 428 [1st Dept 2011]).
Here, Ringel, the judgment debtor, failed to meet his burden. He claims that he receives
about $500,000 in compensation from BR “for his personal services managing the Properties”
(NYSCEF Doc. No. 13). Unfortunately, petitioner showed in reply that this is simply not the
case by submitting an order from a New Jersey action filed by Ringel’s sister against him in
which the Court appointed a management company to manage the properties (NYSCEF Doc.
No. 29). Based on this order, the Court is unable to find that the income Ringel receives from
153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 3 of 5 Motion No. 001
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BR is for “personal services” as required under the statute. Instead, as petitioner contends, this
money appears to be merely passive income rather than income earned for any services provided
to BR.
Moreover, Ringel did not expound upon the personal services he provides or include any
documentation to substantiate his claims. Instead, he includes a footnote observing that he could
disclose tax returns to the Court for in-camera inspection. But that is not sufficient. Ringel
needed to include relevant tax returns or some other financial information in order to meet his
burden of providing that these funds are exempt under the CPLR. As petitioner pointed out in
reply, Ringel did not cite any basis for the proposition that he could submit critical and relevant
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Cohen Tauber Spievack & Wagner P.C. v Ringel 2024 NY Slip Op 30897(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 153525/2022 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153525/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C., MOTION DATE 08/08/20221 Petitioner, MOTION SEQ. NO. 001 -v- BENJAMIN RINGEL, BR LAKEWOOD, LLC DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for TURNOVER PROCEEDING .
The petition for a turnover is granted and the cross-motion is denied as described below.
Background
Petitioner brings this proceeding for a turnover of respondent Ringel’s membership
interest in respondent BR Lakewood, LLC (“BR”). Petitioner obtained a judgment against Ringel
for $246,306.68 on March 1, 2016. Petitioner contends that no part of this judgment has been
paid.
It explains that in connection with a separate proceeding between Ringel and his sister in
New Jersey, petitioner discovered that Ringel admitted he was the sole owner of BR. Petitioner
also observes that it started a separate action to set aside two transfers of 40% in BR and that
Ringel’s current ownership interest in BR is 60%.
1 Although this proceeding was only transferred to the undersigned in the last few days, the Court recognizes that it has been pending for an absurdly long time before different judges, even though petitioner politely requested that its application be considered. On behalf of the court system, the Court apologizes for the lengthy delay in the resolution of this proceeding. 153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 1 of 5 Motion No. 001
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Respondents cross-move to dismiss on the ground that BR is Ringel’s sole source of
income and is therefore protected. They also observe that they have moved to vacate the
judgment referenced in this petition and so, in the alternative, this proceeding should be stayed.
Ringel submits an affidavit in which he explains that he is the sole member of BR and
that BR owns 50% of another entity called BCR Lakewood (“BCR”). He claims that he earns
about $500,000 a year in compensation from BR for managing properties owned by BCR and
that this is his only source of income.
In reply and in opposition to the cross-motion, petitioner contends that the Court should
order a turnover of Ringel’s 60% interest in BR. Petitioner claims that the pending motion to
vacate the judgment is not a basis upon which this Court should deny the instant petition.
With respect to the statutory exemption claimed by respondent Ringel, petitioner claims
that asserted exemption only applies to earnings of the judgment debtor for his personal services.
It points to filings from New Jersey actions which petitioner claims shows that an outside
management company (called Affiliated Management) actually runs the properties and that
Ringel has been enjoined from running these properties.
Petitioner observes that this makes any income derived from BR “passive income” and
therefore not subject to the exemption upon which he relies. It argues that any earnings Ringel
receives is based on BR’s ownership of BCR Lakewood and are distributions, not income for
personal services.
Discussion
This motion was marked submitted on August 8, 2022 before a different judge. In the
many intervening months, much has changed. Ringel’s motion to vacate the underlying
judgment was denied (NYSCEF Doc. No. 153 in Index No. 152531/2014). It does not appear
153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 2 of 5 Motion No. 001
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that this decision was appealed (no notice of appeal appears on the NYSCEF docket). That
moots respondents’ request for a stay of this proceeding as the judgment against him remains in
effect.
Therefore, the only remaining issue is the extent of the charging order to be awarded to
petitioner as there is indisputably a judgment in its favor against Ringel that has not yet been
satisfied. Moreover, there is no question that Ringel has an interest in BR.
CPLR 5205 exempts certain property from the enforcement efforts of a judgment
creditor. Here, the exemption in dispute is the exemption for income. “Income exemptions. The
following personal property is exempt from application to the satisfaction of a money judgment,
except such part as a court determines to be unnecessary for the reasonable requirements of the
judgment debtor and his dependents. . . 2. ninety per cent of the earnings of the judgment debtor
for his personal services rendered within sixty days before, and at any time after, an income
execution is delivered to the sheriff or a motion is made to secure the application of the judgment
debtor's earnings to the satisfaction of the judgment” (CPLR 5205[d][2]).
“[T]he judgment debtor, bore the burden of proving that the funds at issue were exempt
as earnings for personal services under CPLR 5205(d)(2)” (Swig v Properties Asset Mgt.
Services, LLC, 85 AD3d 427, 428 [1st Dept 2011]).
Here, Ringel, the judgment debtor, failed to meet his burden. He claims that he receives
about $500,000 in compensation from BR “for his personal services managing the Properties”
(NYSCEF Doc. No. 13). Unfortunately, petitioner showed in reply that this is simply not the
case by submitting an order from a New Jersey action filed by Ringel’s sister against him in
which the Court appointed a management company to manage the properties (NYSCEF Doc.
No. 29). Based on this order, the Court is unable to find that the income Ringel receives from
153525/2022 COHEN TAUBER SPIEVACK & WAGNER P.C. vs. RINGEL, BENJAMIN ET AL Page 3 of 5 Motion No. 001
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BR is for “personal services” as required under the statute. Instead, as petitioner contends, this
money appears to be merely passive income rather than income earned for any services provided
to BR.
Moreover, Ringel did not expound upon the personal services he provides or include any
documentation to substantiate his claims. Instead, he includes a footnote observing that he could
disclose tax returns to the Court for in-camera inspection. But that is not sufficient. Ringel
needed to include relevant tax returns or some other financial information in order to meet his
burden of providing that these funds are exempt under the CPLR. As petitioner pointed out in
reply, Ringel did not cite any basis for the proposition that he could submit critical and relevant
evidence on an ex parte basis in a turnover proceeding. Ringel could have easily included these
records under seal or with pertinent redactions; but the Court finds that a vague reference to tax
returns is not a basis to compel the Court to deny the petition or do an in-camera review. In fact,
Ringel does not even allege what these tax returns would show. Put another way, a party cannot
meet his burden by offering to show documents in secret to the judge.
Petitioner demands that Ringel be ordered to turn over his 60% interest in BR (petitioner
contends that 40% is held in a trust for his children). That relief is therefore granted.
Accordingly, it is hereby
ADJUDGED that the petition is granted; and it is further
ORDERED that respondent BR Lakewood LLC is directed, upon receipt of a certified copy
of this order and judgment, to turn over to the petitioner all documents necessary to transfer and
assign judgment debtor Benjamin Ringel’s interest in BR Lakewood LLC to petitioner within 14
days of receipt of a certified copy of this order and judgment; and it is further
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ORDERED that petitioner is entitled to costs and disbursements as awarded by the Clerk
upon presentation of proper papers therefor.
3/19/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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