Friedman v. Turner

Appellate Division of the Supreme Court of New York

Friedman v. Turner

135 A.D.3d 487, 22 N.Y.S.3d 825

Appellate Division of the Supreme Court of the State of New York·Decided January 12, 2016·No. 16608 602193/00·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 15, 2014, which denied plaintiff’s motion for an order directing defendant to make installment payments to satisfy a money judgment, unanimously affirmed, without costs.

Defendant’s Social Security payments and rollover retirement account are exempt from plaintiff’s efforts to satisfy the money judgment (CPLR 5205 [c] [1], [2]; 42 USC § 407 [a]; see Bayerische Hypo-und Vereinsbank AG v DeGiorgio, 74 AD3d 492, 493 [1st Dept 2010]; Matter of Bank Leumi Trust Co. of N.Y. v Dime Sav. Bank of N.Y., 85 NY2d 925, 926 [1995]). Further, defendant showed that the insurance payments he received in 2012 and 2013 were used to make his residence habitable after Hurricane Sandy and that he could not reasonably afford to use them to pay plaintiff (see Kaufman v Kaufman, 29 AD2d 922, 922 [1st Dept 1968]; see also Craig v Klein, 8 AD3d 55, 55 [1st Dept 2004]). Plaintiff failed to show that defendant has an annual income of over $100,000. Defendant averred that the Social Security payments are his only source of income, and the undated Fidelity Investments printout submitted by plaintiff does not show that defendant “is receiving or will receive money from [another] source” (CPLR 5226).

Under the circumstances, and given that there has been more than 10 years of discovery in this postjudgment enforcement *488 proceeding, a hearing is not warranted. Concur — Renwick, J.R, Andrias, Saxe and Moskowitz, JJ.

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Order, Supreme Court, New York County (Paul Wooten, J.), entered May 15, 2014, which denied plaintiff’s motion for an order directing defendant to make installment payments to satisfy a money judgment, unanimously affirmed, without costs.

Defendant’s Social Security payments and rollover retirement account are exempt from plaintiff’s efforts to satisfy the money judgment (CPLR 5205 [c] [1], [2]; 42 USC § 407 [a]; see Bayerische Hypo-und Vereinsbank AG v DeGiorgio, 74 AD3d 492, 493 [1st Dept 2010]; Matter of Bank Leumi Trust Co. of N.Y. v Dime Sav. Bank of N.Y., 85 NY2d 925, 926 [1995]). Further, defendant showed that the insurance payments he received in 2012 and 2013 were used to make his residence habitable after Hurricane Sandy and that he could not reasonably afford to use them to pay plaintiff (see Kaufman v Kaufman, 29 AD2d 922, 922 [1st Dept 1968]; see also Craig v Klein, 8 AD3d 55, 55 [1st Dept 2004]). Plaintiff failed to show that defendant has an annual income of over $100,000. Defendant averred that the Social Security payments are his only source of income, and the undated Fidelity Investments printout submitted by plaintiff does not show that defendant “is receiving or will receive money from [another] source” (CPLR 5226).

Under the circumstances, and given that there has been more than 10 years of discovery in this postjudgment enforcement *488 proceeding, a hearing is not warranted. Concur — Renwick, J.R, Andrias, Saxe and Moskowitz, JJ.

Friedman v. Turner, 135 A.D.3d 487, 22 N.Y.S.3d 825 (N.Y. Ct. App. 2016).

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Opinion

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