The following papers, under Motion Sequence Numbers 15 and 16, were read on this motion by defendant-Britton Properties, Inc. ["Britton"] for, inter alia, an order, pursuant to CPLR 5204, to remove or vacate the levy filed by the City Marshal ["marshal"] in this case, an Order to Show Cause ["OSC"] by plaintiff Amelia Arcamone-Makinano,1 under Motion Sequence No. 16, to release a sum of money held by the New York City Department of Finance, and two cross motions, one by said plaintiff, and the second by the interested non-party marshall for orders in this case relating to a money judgment in favor of said plaintiff and the collection of a poundage fee.Papers NumberedNotice of Motion-Affidavit-Affidavit of Service-Exhibits 1-22Notices of Cross Motions and Order To Show Cause-Affirmation-Exhibits 23-45Opposing Papers 46-57Reply Papers 58-66DECISION AND ORDER The significant issues before this Court are whether or not (1) a levy placed upon a CPLR 5519 undertaking by the marshall should be removed or vacated and (2) the marshal is entitled to a poundage fee pursuant to CPLR 8012(b)(1). Assuming the Court concludes that a poundage fee is payable, the Court must determine which side is responsible for such fees. The motions are decided in accordance with this decision and order.The history of this case has been recited in past decisions of this Court under Motion Sequence Numbers 12 and 13. Briefly stated, the plaintiffs commenced this action on December 9, 2009 against the defendant Britton, and Tsan Chih Chou, to recover damages for trespass onto real property and for injunctive relief. Following a non-jury trial before a Justice of this Court, the plaintiffs’ first cause of action for injunctive relief, as well as the second and third causes of action were dismissed. The Court, finding liability on the fourth cause of action, awarded nominal damages in the amount of one dollar ($1.00) to the plaintiffs. The Appellate Division, Second Department, reversed said order and judgment, reinstated the first three causes of action, and ordered a new trial. See, Arcamone-Makinano v. Britton Prop. Inc., 117 AD3d 889 (2nd Dept. 2014).A second non-jury trial was, once again, held before the judge who presided over the first trial. In a decision and order, dated April 18, 2016, that judge found the defendants liable for trespass; awarded plaintiffs $750,000.00 on the third cause of action and on so much of the fourth cause of action that sought to recover compensatory damages for trespass; and dismissed so much of the fourth cause of action that sought to recover punitive damages. Judgment in the amount of $750,000.00 was entered on July 27, 2016.Thereafter, defendant Britton filed an appeal to the Second Department, Appellate Division, seeking further judicial review of the April 18, 2016 judgment. On April 21, 2017, the plaintiff sought the services of the marshal, who then served a bank levy on an account maintained by the defendant at Flushing Savings Bank.Three days later, on April 24, 2017, defendant, availing itself of the protections afforded by CPLR 5519(a), posted an undertaking in the amount of $1,199,454.04 with the Queens County Clerk’s Office, to reflect the judgment of the Supreme Court, entered on April 18, 2016, in favor of the plaintiffs.Thereafter, on or about April 27, 2017, defendant Britton contacted the marshal, notified him of the CPLR 5519 undertaking, and demanded that its account at Flushing Savings Bank be released from the levy. The marshal contacted the plaintiff, Amelia Arcamone-Makinano, who, apparently, consented to the release. The account was then released from the levy on May 1, 2017.In a decision and order dated December 13, 2017, the Appellate Division, Second Department modified the July 27, 2016 judgment on the facts, and in the exercise of discretion, lowered the award of the trial court by $175,000.00. It substituted that portion of the judgment awarding $750,000.00 for a provision in favor of the plaintiffs and against the defendants in the principal sum of $325,000.00 on the third cause of action and so much of the fourth cause of action that sought to recovery for compensatory damages. The Second Department also deleted the provision in favor of the defendants and against the plaintiff dismissing so much of the fourth cause of action as sought to recover punitive damages and substituted therefor a provision in favor of the plaintiffs and against the defendants in the principal sum of $250,000.00 on so much of the fourth cause of action that sought to recover punitive damages (Arcamone-Makinano v. Britton Prop. Inc., 156 AD3d 669 [2nd Dept 2017], Iv. to appeal denied, 31 NY3d 907 [2018]).The modified judgment was entered in Supreme Court on January 29, 2018.In a decision and order, dated October 29, 2018, this Court ordered the Department of Finance to release the funds to plaintiff in satisfaction of the judgment. On January 15, 2019, in order to collect on the judgment and to protect his right to poundage, the marshal served a second notice of levy, this time on the Department of Finance (“Department of Finance”). This Court subsequently issued a second order on February 20, 2019 directing the Department of Finance to release the subject funds. By this motion, defendant Britton moves to vacate the levy pursuant to CPLR 5204. As explained in this decision and order, that application is expressly denied.The marshal contends that he is entitled to poundage as well as attorney’s fees. Essentially, he argues that defendant Britton affirmatively interfered with the Flushing Savings Bank levy by posting the CPLR 5519 undertaking three days after that first levy was filed and eight months after filing the notice of appeal. Alternatively, he claims that he is entitled to poundage inasmuch as the levy was vacated or set aside.For reasons stated in this opinion, the Court finds that the marshal is entitled to a poundage fee pursuant to CPLR 8012(b)(1). The Court, however, does so for reasons different from those argued by the marshal.The Court begins its analysis with the Court of Appeals’s decision in Solow Mgt. Corp. v. Tanger. See, Solow Mgt. Corp. v. Tanger, 10 N.Y.3d 326 (2008). In Solow, the Court of Appeals held that CPLR 8012(b)(1) determines “whether a Marshall is entitled to poundage and at what percentage.” Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 330. That statute, in part, provides as follows:A sheriff is entitled, for collecting money by virtue of an execution, an order of attachment, or an attachment for the payment of money in an action, or a warrant for the collection of money issued by the comptroller or by a county treasurer or by any agency of the state or a political subdivision thereof, or for collecting a fine by virtue of a commitment for civil contempt, to poundage of, in the counties within the city of New York, five per cent of the sum collected and in all other counties, five per cent upon the first two hundred fifty thousand dollars collected, and three per cent upon the residue of the sum collected.2CPLR 8012(b)(1).Pursuant to this section, a marshal who has actually failed to collect any monies pursuant to his levy, is not entitled to a poundage fee. See, CPLR 8012(b)(1); see also, Solow Mgt. Corp. v. Tanger, supra 10 N.Y.3d at 330. Thus, to justify his entitlement to a poundage fee, the marshal contends that, where the collection process has been commenced but not completed, he is still entitled to poundage if one of three exceptions in the law exist. See Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 330; see also, Carbrera v. Hith, 87 AD3d 844 (1st Dept. 2011).In Solow, the Court of Appeals noted that where the marshal has “failed to actually collect any monies pursuant to his levy, in order to be entitled to poundage, he must show facts that fall within one of the two statutory exceptions.” Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 330. The first is applicable when “a settlement is made after a levy by virtue of an execution;” the second applies when the “execution is vacated or set aside” CPLR 8012 (b)(2)& (3); see also Personeni v. Aquino, 6 NY2d 35, 37-38(1959). Certainly, these two occurrences bring about a halt to the collection process. In this case, however, there has neither been a settlement, nor has the marshal’s levy of January 15, 2019 been vacated or set aside. See Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 329, 331. For these reasons, the two statutory exceptions are inapplicable.Caselaw has created a third exception. See Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 330-331. This “judicially created exception applies when there has been affirmative interference with the collection process, thus preventing a marshal from actually collecting the levied assets….” Id. In Solow, however, the Court of Appeals expressly held that “the posting of an appeal bond [does not constitute] affirmative interference.” Id, at 328. For this reason, the marshal’s entitlement to a poundage fee may not be predicated upon the undertaking by defendant Britton in this case.That none of the exceptions apply to this case is meaningless. The marshal’s legal right to collect on the plaintiff’s judgment and charge poundage is not dependent upon the applicability of one or more of the three legal exceptions listed above. Such an analysis is wholly unnecessary. Here, it is quite clear that “the underlying judgment…[has] never [been] collected by the marshal pursuant to his levy.” Id, at 330-331; see also, CPLR 8012(b)(1). Equally important, there is nothing standing in the way of the marshal’s right to act in this case. The Court, therefore, finds that the marshal is entitled to collect the underlying judgment on behalf of the plaintiff from the Department of Finance and to poundage.In reaching this conclusion, the Court is guided by the facts in Solow; they are essential to an understanding of the implications of that decision. In Solow, the defendants were successful in getting the judgment of the trial court’s reversed on appeal. Thus, the marshal in Solow was thwarted in his collection attempt because there was no judgment to collect. In other words, the levy was no longer valid. See, Solow Mgt. Corp. v. Tanger, supra, 10 N.Y.3d at 331-32. As a result, the marshal’s entitlement in Solow to a poundage fee hinged on one of the three exceptions discussed in that decision. Id, at 331-32. Given that none of the exceptions applied, the marshal was not entitled to a poundage fee.In this case, by contrast, although Britton successfully convinced the Appellate Division to modify the plaintiff’s money judgment from $750,000.00 to $575,000.00, it certainly did not win on the merits. This distinction is crucial. As the Court of Appeals expressly noted in Solow, “if the [defendants] lost their appeal, the marshal’s levy would still be intact and he would be free to complete the collection process. Id. at 332. Thus, inasmuch as defendant Britton succeeded only in obtaining a modification of the money judgment, the marshal was authorized to issue the second levy of January, 2019. Accordingly, under Solow, nothing is standing in the way of the marshal’s rights under the law. Given that the second levy is valid, the marshal is entitled to collect on the judgment and to his poundage fee. Id.; see also, CPLR 8012(b)(1).In light of this finding, the Court concludes that it would be wholly inappropriate to vacate the marshal’s current levy. Defendant Briton has not established that the levy is either illegal or invalid. Nor has this defendant provided this Court with some other legal basis for vacating this levy. Under these circumstances, vacating the levy would unjustifiably prevent the marshal from collecting on the judgment in this case. The motion by defendant Britton to vacate the levy is, accordingly, denied.To the extent that an order is required directing the Department of Finance to release the money to the marshal, the Court, in this decision and order, will issue an order to that effect.3The Court now turns to the question of which side is responsible for paying the poundage fee. CPLR 8012(b) is silent on this issue. The Second Department, Appellate Division, has held that “[g]enerally, the judgment debtor is responsible for the payment of poundage fees.” DePasquale v. Estate of DePasquale, 89 A.D.3d 672, 674 (2nd Dept. 2011); Southern Indus. v. Jeremias, 66 A.D.2d 178 (2nd Dept. 1978).The Court notes that the caselaw on this issue is not entirely clear. In this case, had the plaintiff initially invoked the services of the marshal after the undertaking without first notifying him of the bond, then certainly she might be liable. see also, Cabrera v. Hirth, 87 A.D.3d 844 (1st Dept. 2011); see also, Martin v. Consolidated Edison Co., 177 AD2d 548 (2nd Dept. 1991). The Court acknowledges that there are cases that place the responsibility for poundage on the person who invoked the marshal’s services. See, In Foley v. West-Herr Ford, Inc., 111 A.D.3d 1288 (4th Dept. 2013); see also, Cabrera v. Hirth, supra, 87 A.D.3d at 844. These cases, however, are distinguishable in that they involve scenarios wherein the action had been settled after the issuance of the levy. Id, at 849; see also, In Foley v. West-Herr Ford, Inc., 111 A.D.3d at 1288. As noted, in this case, the plaintiff obtained a money judgment in her favor following a non-jury trial; there was no settlement.In determining which side is responsible of poundage, the Court notes that both sides sought to protect their respective interests in this case. The plaintiff invoked the services of the marshal to ensure the collection of her money judgment; the defendant Britton placed an undertaking in this case to stay collection of the judgment until its appeal was decided. In that respect, the Court finds the argument by defendant Britton that the plaintiff invoked the services of the marshal after the undertaking to be disingenuous. It is quite obvious that the plaintiff initially sought the marshal’s services before the undertaking by defendant Britton. Given that the plaintiff did not affirmatively interfere with the collection process and there was neither a settlement in this case nor a vacatur of the levy, the general rule that the judgment debtor is responsible for poundage should be applied to this case. See, Alexander, 2014 Supplemental Practice Commentaries, McKInney’s Cons Law of NY, CPLR 8012; see also, In Foley v. West-Herr Ford, Inc., supra, 111 A.D.3d at 1289. Accordingly, defendant Britton is responsible for the marshal’s poundage fee.The Court finds that the plaintiff’s motion for this Court to calculate statutory interest from July 9, 2018, is denied as procedurally defective. As noted, this Court, in a decision and order dated and entered on October 29, 2018, tolled interest in this case. The plaintiff neither appealed that decision nor did she make a timely motion for reargument. To seek to reargue that decision by an unnoticed cross motion is procedurally improper.The marshal requests a poundage fee in the amount of $41,893.27. In the City of New York, the marshal is entitled to a poundage fee based on 5 percent of the judgment in this case of $837, 519.11. See, CPLR 8012(b)(1). The Court finds that the correct figure is, however, $41,875.95. Accordingly, the Court finds that the marshal is entitled to a poundage fee of $41,875.95; the Court further finds that such fee is to be paid by defendant Britton.The marshal’s requests for an award of reasonable attorney’s fees in this case is granted, in part, and denied, in part. CPLR 8012(b)(5) provides that “[a] sheriff who brings an action in a court of competent jurisdiction to collect such amount provided for in this subdivision may also be awarded reasonable attorney’s fees….” In this case, the marshal did not file an action. Nevertheless, there is caselaw holding that the marshal need not bring a plenary action in order to enforce his rights under CPLR 8012. See, Martin v. Consolidated Edison Co. Of N.Y., Inc., 146 Misc. 2d 756, 758 (Sup. Ct. Kings County 1990), aff’d, 177 AD2d 548 (2nd Dept. 1991). As noted by the trial court in Martin, given that “[t]he party to be charged the poundage is already a party to the lawsuit and the enforcement of the money judgment is conducted within the framework of the predicate action,” a plenary action is not required. Id. The Court concludes that the marshal’s request in the present case is procedurally proper.In the exercise of its discretion, the Court grants the marshal’s motion for attorney’s fees. The Court, however, has no basis to make a specific award at this time. It is well-settled that the party seeking the award of attorney’s fees must provide “the court [with]…sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered.” NYCTL 1998-1 Trust v. Oneg Shabbos, Inc., supra, 37 AD3d at 791. As noted by the Second Department, there “must be a sufficient affidavit of services, detailing the hours reasonably expended…and the prevailing hourly rate for similar legal work in the community’ SO/Bluestar, LLC v. Canarsie Hotel Corp., 33 A.D.3d 986, 988 (2nd Dept. 2006)(citations omitted); see also, YCTL 1998-1 Trust v. Oneg Shabbos, Inc., supra, 37 AD3d at 791.Here, the marshal has failed to provide this Court with any basis for such an award. The marshal’s attorney has simply requested an award of attorney’s fees. The attorney, however, has not provided this Court with a specific amount that should be imposed. Equally important, the marshal’s attorney has not provided any information regarding the number of hours actually that were actually expended and incurred in connection with the instant litigation that was undertaken on the marshal’s behalf and the hourly rates. See, e.g., O’Shea v. O’Shea, 93 NY2d 187 (1999); see also, First Nat’l Bank v. Brower, 42 NY2d 471 (1977); Pickett v. Gibbs, 80 AD3d 592 (2nd Dept. 2011). Jeffrey L. Rosenberg & Assoc., LLC v. Candid Litho Print., Ltd., 76 AD3d 510 (2nd Dept. 2010).Accordingly, the marshal’s application for an award of attorney’s fees is granted. The application for this Court to set attorney’s fees in an unspecified amount is, however, denied without prejudice to renew upon a proper showing on papers as to the reasonable basis of such fees and that such legal fees were reasonably and actually incurred. See, Industrial Equipment Credit Corp. v. Green, 92 AD2d 838 (1st Dept. 1983); aff’d, 62 NY2d 903 (1984); see also NYCTL 1998-1 Trust v. Oneg Shabbos, Inc., 37 AD3d 789 (2nd Dept. 2007); Messinger v. Messinger, 24 AD3d 631 (2nd Dept. 2005); Bengard v. Bengard, 5 AD3d 340 (2nd Dept. 2004).At this time, it makes sense to decide which side is responsible for the marshal’s attorney’s fees. CPLR 8012(b)(5) provides no guidance on this subject. Given that this Court is imposing responsibility for the marshal’s poundage fee on the judgment debtor, it makes sense to do the same with respect to attorney’s fees. Accordingly, the Court finds that defendant Britton is responsible for such fees.The motion by defendant Britton and the cross motion by the plaintiff for sanctions, including the imposition of attorney’s fees, are both expressly denied. See, 22 NYCRR §130-1.1. The Court finds that the litigation conducted by the plaintiff and the attorneys for defendant Britton was each handled zealously, professionally, and effectively and, certainly, did not constitute frivolous conduct.That portion of the plaintiff’s order to show cause requesting this Court to so-order a stipulation to release money held by the Department of Finance is denied. Here, the plaintiff presented such a stipulation to defendant Britton, which, in turn, refused to sign it. Given that the Court cannot compel a litigant to enter into a stipulation, the plaintiff’s motion must be denied. See, People v. Hills, 140 AD2d 71 (2nd Dept. 1988).The Court notes that, according to the moving papers, the Department of Finance is currently holding approximately $1,199454.04 pursuant to Britton’s CPLR 5519 undertaking. Of that amount, approximately $837,519.11 represents the plaintiff’s judgment in this case and $361,934.90 represents the excess, to which defendant Britton would be entitled, but for the marshal’s levy and his request for attorney’s fees.The Court directs the Department of Finance to release funds in the amount of $837,519.11, together with any interest that has accrued on the deposited funds, to the city marshal, who shall collect this amount on behalf of the plaintiffs, in satisfaction of the judgment. The Department of Finance shall release the balance of $361,934.90, together with any interest that has accrued on the deposited funds, as follows: $315,058.95 shall be released to defendant Britton; the balance of $41,875.95 shall be released to the marshal in satisfaction of his poundage fee; and $10,000.00 shall be held by the marshal pending the Court’s decision as to the amount of attorney’s fees that will be awarded. The defendant — and not the marshal — shall be entitled to any interest that has accrued on the remaining funds.The motions are, therefore, all decided, in accordance with this decision and order.Accordingly, it is:ORDERED that the branch of the motion by defendant Britton Property, Inc., under Motion Sequence Number 15, to vacate the levy filed by the City Marshal pursuant to CPLR 5204 is denied; and it is furtherORDERED that the branch of the motion by defendant Britton Property, Inc., under Motion Sequence Number 15, to release funds held by the Department of Finance is granted in accordance with this decision and order; and it is furtherORDERED that the branch of the motion by defendant Britton Property, Inc., under Motion Sequence Number 15, for an order requiring the plaintiff Amelia Arcamone-Makinano to pay the City Marshal’s poundage fee pursuant to CPLR 8012(b)(1) is denied; and it is furtherORDERED that the application by the defendant, Britton Property, Inc., for the imposition of sanctions, including attorney’s fees, against the plaintiff, Amelia Arcamone-Makinano, is denied in accordance with this decision and order; and it is furtherORDERED that the City Marshal’s cross motion is granted to the extent that he is permitted to collect, from the New York City Department of Finance, the judgment entered in this case on behalf of the plaintiffs, Amelia Arcamone-Makinano and Bonifacio Makinano; and it is furtherORDERED that the City Marshal’s cross motion is further granted to the extent that he is awarded poundage in the amount of $41,875.95; and it is furtherORDERED that the City Marshal’s cross motion is further granted to the extent that such poundage fee is to be paid by defendant Britton Property, Inc.; and it is furtherORDERED that the City Marshal’s cross motion for an award of attorney’s fees is granted, in accordance with this decision and order; and it is furtherORDERED that the City Marshal’s cross motion an award attorney’s fees in an unspecified amount is denied, without prejudice to renew, in accordance with this decision and order; and it is furtherORDERED that, in accordance with this decision and order, the defendant, Britton Property, Inc., shall pay, to the City Marshal, any attorney’s fees that the Court determines to be reasonable based; and it is furtherORDERED that the cross motion of the plaintiff, Amelia Arcamone-Makinano, for sanctions against defendant Britton Property, Inc. is denied in accordance with this decision and order; and it is furtherORDERED that the cross motion of the plaintiff, Amelia Arcamone-Makinano, to release funds held by the New York City Department of Finance is granted in accordance with this decision and order; and it is furtherORDERED that the cross motion of the plaintiff, Amelia Arcamone-Makinano, to calculate statutory interest from July 9, 2018, is denied in accordance with this decision and order; and it is furtherORDERED that the branch of the motion by the plaintiff, Amelia Arcamone-Makinano, brought by Order to Show cause under Sequence Number 16, to so-order a stipulation is denied; and it is furtherORDERED that the branch of the motion by the plaintiff, Amelia Arcamone-Makinano, brought by Order to Show cause under Sequence Number 16 to release funds held by the New York City Department of Finance is denied as duplicative; and it is furtherORDERED that the New York City Department of Finance is directed to release funds in the amount of $837,519.11, together with any interest that has accrued on the deposited funds, to the City Marshal, who shall collect this amount on behalf of the plaintiffs, Amelia Arcamone-Makinano and Bonifacio Makinano, in satisfaction of their judgment against the defendants; and it is furtherORDERED that the New York City Department of Finance shall release the sum of $365,058.95, together with any interest that has accrued on the deposited funds, in accordance with this decision and order, as follows:(a) the sum of $315,058.95 shall be released to the defendant, Britton Property, Inc.;(b) the balance of $41,875.95 shall be released to the City Marshal in satisfaction of his poundage fee; and(c) the sum of $10,000.00 shall be held by the City Marshal pending the Court’s decision on the specific amount of attorney’s fees that is to be awarded; and it is furtherORDERED that the defendant, Britton Property, Inc. — and not the City Marshal — shall be entitled to any interest that has accrued on the deposited funds.Dated: July 15, 2019
