Matter of LCF Group, Inc. v. Fifth Third Bank, N.A.

2024 NY Slip Op 32304(U)

• Court: New York Supreme Court, New York County
• Decided: July 8, 2024
• Status: Unpublished

Opinion

Matter of LCF Group, Inc. v Fifth Third Bank, N.A. 2024 NY Slip Op 32304(U) July 8, 2024 Supreme Court, New York County Docket Number: Index No. 158604/2023 Judge: John J. Kelley 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. 158604/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/08/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 158604/2023 In the Matter of MOTION DATE 09/11/2023 THE LCF GROUP, INC., MOTION SEQ. NO. 001 Petitioner,

-v- DECISION + ORDER ON FIFTH THIRD BANK, N.A., MOTION

Respondent. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 were read on this motion to/for TURNOVER PROCEEDING .

In this proceeding pursuant to CPLR 5225, the petitioner, The LCF Group, Inc. (LCF),

seeks an order directing the respondent Fifth Third Bank, N.A. (the bank), to turn over the sum

of $9,083.77, plus statutory post-judgment interest on that sum from May 26, 2023, from an

account or accounts that the bank maintains for or on behalf of judgment debtors ESF Janitorial,

LLC, doing business as ESF Janitorial (ESF), and Sandy Cross to satisfy a judgment that had

been entered in the Supreme Court, Nassau County, on May 26, 2023, in favor of LCF and

against those judgment debtors, jointly and severally. No opposition has been submitted to the

petition. The petition is granted, and the bank is directed to turn over, to the petitioner, all sums

up to the amount of $9,083.77, plus statutory post-judgment interest on that sum from May 26,

2023, that it currently holds on account for ESF or Sandy Cross, less any amount that it

currently holds that is statutorily exempt from execution and turnover.

On May 26, 2023, in a Supreme Court action entitled The LCF Group, Inc. v ESF

Janitorial, LLC, doing business as ESF Janitorial, and Sandy Cross, LCF secured a money

judgment against ESF and Cross, jointly and severally, in the total sum of $9,083.77, inclusive

158604/2023 THE LCF GROUP, INC. vs. FIFTH THIRD BANK, N.A. Page 1 of 4 Motion No. 001

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of costs, disbursements, and prejudgment contractual interest (see The LCF Group, Inc. v ESF

Janitorial, LLC, Sup Ct, Nassau County, Index No. 617980/2022, May 26, 2023). LCF

established that no portion of that judgment has been satisfied. In or about June, 2023, LCF

caused the bank to be served with a levy, information subpoena, and final demand pursuant to

CPLR 5232(a), directing that it pay over to the LCF the sum of $9,083.77 from any and all of the

accounts that ESF and Cross maintained with the bank. LCF commenced this proceeding on

August 30, 2023. On September 6, 2023, LCF served the bank with the notice of petition and

petition herein by delivery thereof to an agent authorized by appointment to accept service of

process. On August 31, 2023, LCF served ESF and Cross with those papers to their last known

addresses by certified mail, return receipt requested. Neither the bank nor the debtors have

answered or moved with respect to the petition, or otherwise appeared in the proceeding.

“CPLR 5225(b) provides for an expedited special proceeding by which a judgment

creditor can recover ‘money or other personal property’ belonging to a judgment debtor ‘against

a person in possession or custody of money or other personal property in which the judgment

debtor has an interest’ in order to satisfy a judgment” (Matter of New York Community Bank v

Bank of Am., N.A. 169 AD3d 35, 37-38 [1st Dept 2019], quoting Matter of Signature Bank v

HSBC Bank USA, N.A., 67 AD3d 917, 918 [2d Dept 2009]). That provision thus is the

appropriate provision under which to pursue a turnover proceeding against a bank that holds a

judgment debtor’s assets on deposit (see Matter of First Am. Tit. Ins. Co. v Kenderian, 157

AD3d 891, 891-892 [1st Dept 2018]; see also Plymouth Venture Partners, II, L.P. v GTR

Source, LLC, 37 NY3d 591, 613-614 [2021] [Wilson, J., dissenting]; Richard C. Reilly, Practice

Commentaries, McKinney's Cons Laws of NY, CPLR C5225:1; see generally Koehler v Bank of

Bermuda Ltd., 12 NY3d 533, 540-541 [2009]).

More specifically, CPLR 5225(b) provides for a turnover of assets, as sought by the

petitioner here, “[u]pon a special proceeding commenced by the judgment creditor” against an

entity such as the bank, which is “in possession of custody” of the judgment debtor’s assets. A 158604/2023 THE LCF GROUP, INC. vs. FIFTH THIRD BANK, N.A. Page 2 of 4 Motion No. 001

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special proceeding is commenced by the filing of a petition (see CPLR 304[a]). Pursuant to

CPLR 403(a), “[a] notice of petition” in a special proceeding “shall be served on any adverse

party at least eight days before the time at which the petition is noticed to be heard,” although a

petitioner may demand that a respondent serve an answer to the petition 7 days before the

return date of the petition where the petitioner serves the notice of petition 12 days before the

return date. CPLR 403(c) provides that “[a] notice of petition shall be served in the same

manner as a summons in an action.” CPLR 5225(b) provides that “[n]otice of the [turnover]

proceeding shall also be served upon the judgment debtor in the same manner as a summons

or by registered or certified mail, return receipt requested.”

LCF properly served the bank with the levy and demand, it properly commenced this

proceeding against the bank pursuant to CPLR 5225 to secure an order turning over all non-

exempt funds in the subject bank accounts, it properly named and served the bank, and it

properly served the judgment debtors with all of the papers in this proceeding.

Accordingly, it is,

ORDERED that the petition is granted, without opposition, and the respondent Fifth

Third Bank, N.A., is directed to turn over, to the petitioner, all sums up to the amount of

$9,083.77, plus simple statutory post-judgment interest at 9% per annum on that sum from May

26, 2023, that it currently holds on account for ESF Janitorial, LLC, doing business as ESF

Janitorial, and/or Sandy Cross, less any amount that it currently holds on their account that is

statutorily exempt from execution and turnover; and it is further,

ORDERED that, within 15 days of the entry of this order, the petitioner shall serve a

copy of this order with notice of entry upon Fifth Third Bank, N.A., ESF Janitorial, LLC, doing

business as ESF Janitorial, and Sandy Cross, both by regular mail and by certified mail, return

receipt requested; and it is further,

ORDERED that the respondent Fifth Third Bank, N.A., is directed, within 45 days of

service upon it of a copy of this order, with notice of entry, to deliver, to Adam J. Feldman, Esq., 158604/2023 THE LCF GROUP, INC. vs. FIFTH THIRD BANK, N.A. Page 3 of 4 Motion No. 001

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3000 Marcus Avenue, 2W15, Lake Success, New York 11042, as attorney for the petitioner, the

sum of $9,083.77, plus statutory post-judgment interest on that sum from May 26, 2023, that it

currently holds on account for ESF and/or Sandy Cross, less any amount that it currently holds

that is statutorily exempt from execution and turnover, including account numbers XXXX5143,

XXXX8331, and XXXX0197, by certified, bank, or treasurer’s check, payable jointly to Adam J.

Feldman and The LCF Group, Inc.

This constitutes the Decision and Order of the court.

7/8/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

158604/2023 THE LCF GROUP, INC. vs. FIFTH THIRD BANK, N.A. Page 4 of 4 Motion No. 001

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