Franklin National Bank v. Baron

37 A.D.2d 566, 322 N.Y.S.2d 323, 1971 N.Y. App. Div. LEXIS 3928

Opinion

In a proceeding against appellant to enforce a default judgment, the appeal is from an order of the Supreme Court, Nassau County, dated September 25, 1970 and made after a hearing, which denied appellant’s motions (a) for a protective order pursuant to CPLR 5240 relieving and vacating the restraining notices served by the judgment creditor upon appellant’s depositories and to stay enforcement proceedings and (b) to release and vacate an execution upon the judgment. Order reversed, on the law, without costs, and proceeding remitted to Special Term, for a new hearing and a new determination, in accordance with the views herein set forth. The questions of fact have not been considered on this appeal. Special Term erred ■in basing the denial of appellant’s motions on its finding that he should be held responsible for the overdraft. That was not the issue here. The question which must be resolved at the hearing is whether appellant is the person whom respondent actually sued and served with the summons, as well as whether he is the actual judgment debtor. Rabin, P. J., Hopkins, Martuseello, Shapiro and Christ, JJ., concur.