Iervolino v. National Fuel Gas Distribution Corp.

252 A.D.2d 957, 675 N.Y.S.2d 721, 1998 N.Y. App. Div. LEXIS 8449

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted judgment to petitioners in this proceeding pursuant to CPLR 5239 and ordered respondent National Fuel Gas Distribution Corporation (National Fuel) to turn over to petitioners all monies in its possession belonging to respondent Energy Controls Unlimited, Inc. (Energy Controls). Petitioners established that they have a valid judgment against Energy Controls, filed on September 30, 1996, in the amount of $35,362.42, and respondent Connecticut Energy Corporation (CEC) failed to raise an issue of fact whether it had a prior validly perfected security interest that is superior to petitioners’ subsequent judgment and execution (see generally, Olsker v Niagara Frontier Transp. Auth., 103 AD2d 1011, lv denied 64 NY2d 603). The mortgage submitted to the court by CEC purports to give CEC’s predecessors in interest a security interest derived from property interests listed in “Schedule A”. CEC failed, however, to provide the court with that document, nor does it appear in the record on appeal. Thus, on this record, it cannot be determined whether the monies in the possession of National Fuel were derived from properties subject to the mortgage. (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J. — CPLR 5239.) Present — Denman, P. J., Hayes, Pigott, Jr., Balio and Fallon, JJ.