Gaglione v. Mahoney

Appellate Division of the Supreme Court of New York

Gaglione v. Mahoney

306 A.D.2d 279, 760 N.Y.S.2d 350, 2003 N.Y. App. Div. LEXIS 6236

Appellate Division of the Supreme Court of the State of New York·Decided June 2, 2003·Published

Opinion

—In a proceeding pursuant to CPLR 5239 to determine adverse claims to property, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Kit-son, J.), entered April 10, 2002, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly denied the petition and dismissed the proceeding. The purpose of CPLR 5203 (b) is to protect a purchaser, creditor, or mortgagee in good faith, or “such persons who would not otherwise have notice of pending levy and Sheriff’s sale” (Kazmeroff v Ehlinger, 43 Misc 2d 942, 944 [1964]; see Roma Roofing Co. v Marcotrigiano, 156 AD2d 638 [1989]). Here, it is clear that the petitioner was on notice , of the judgment lien filed by the respondent Sam’s Bargain Center, Inc., doing business as Sam’s B.C. Nurseries (hereinafter Sam’s), and that she docketed her own judgment before its expiration. Thus, she was not entitled to first priority against Sam’s with respect to the proceeds of the sale of the subject property.

The petitioner’s remaining contention is without merit. Santucci, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.

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—In a proceeding pursuant to CPLR 5239 to determine adverse claims to property, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Kit-son, J.), entered April 10, 2002, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly denied the petition and dismissed the proceeding. The purpose of CPLR 5203 (b) is to protect a purchaser, creditor, or mortgagee in good faith, or “such persons who would not otherwise have notice of pending levy and Sheriff’s sale” (Kazmeroff v Ehlinger, 43 Misc 2d 942, 944 [1964]; see Roma Roofing Co. v Marcotrigiano, 156 AD2d 638 [1989]). Here, it is clear that the petitioner was on notice , of the judgment lien filed by the respondent Sam’s Bargain Center, Inc., doing business as Sam’s B.C. Nurseries (hereinafter Sam’s), and that she docketed her own judgment before its expiration. Thus, she was not entitled to first priority against Sam’s with respect to the proceeds of the sale of the subject property.

The petitioner’s remaining contention is without merit. Santucci, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.

Gaglione v. Mahoney, 306 A.D.2d 279, 760 N.Y.S.2d 350, 2003 N.Y. App. Div. LEXIS 6236 (N.Y. Ct. App. 2003).

Pincite

306 A.D.2d 279 (Gaglione v. Mahoney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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