In a fight of first impression, Defendant is battling to keep plaintiff from taking over defendant’s potential legal malpractice case against his attorney. In this case, it seems that the Defendant and the attorney are childhood friends, and that Defendant would do almost anything (except pay plaintive) to protect the attorney. What loyalty!
Borges v Placeres 2018 NY Slip Op 51622(U) Decided on November 2, 2018 Civil Court Of The City Of New York, New York County Ramseur, J. is unique in that one of the parties (not a lawyer-party) is trying to keep a legal malpractice case from commencing.
“Plaintiff/Judgment Creditor Jose Borges moved, pursuant to CPLR 5225 and 5240, to compel assignment of Defendant/Judgment Debtor Alfred Placeres’s potential legal malpractice claim against Defendant’s friend and former attorney to satisfy Plaintiff’s judgment (motion sequence 023). In a June 27, 2018 decision and order, (Borges v Placeres, 60 Misc 3d 1033 [Civ Ct NY County 2018], the “Order”), the Court granted the motion and compelled assignment of the claim. Defendant now moves by order to show cause: (1) pursuant to CPLR 5015(a)(4), to vacate the Order nunc pro tunc for lack of jurisdiction; pursuant to CPLR 2221(d), to reargue the Order; and (3) for an order directing Plaintiff to withdraw the action commenced as assignee (mot seq 024). As detailed below, reargument is granted, and the Court adheres to its original determination.”
“Similarly, where property value is not only unclear but arguably ummarketable, thus rendering it “unlikely that a turnover to the sheriff would result in satisfying the judgment,” courts have also directed turnover to a receiver to do any act “designed to satisfy the judgment” (see CPLR 5228; Udel v Udel, 82 Misc 2d 882, 884 [Civ Ct NY County 1975] [on motion of creditor, appointing receiver “to do any act designed to satisfy the judgment, including dissolution of the corporation as provided in section 1511 and section 1001 of the Business Corporation Law”]; accord Hotel 71 Mezz Lender LLC v Falor, 14 NY3d 303, 317 [2010] [“A receivership has been held especially appropriate when the property interest involved is intangible, lacks a ready market, and presents nothing that a sheriff can work with at an auction, such as the interest of a psychiatrist/judgment debtor in a professional corporation of which he is a member.”]). Moreover, the Court has “broad supervisory powers over the sheriff in conjunction with the enforcement of judgments,” including the power to “direct the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt, or the proceeds thereof” (Siegel/Reilly, Practice Commentaries, CPLR 5238 C5238:1 [emphasis added] [“The list of verbs contained in CPLR 5238—dispose of, account for, assign, return, release, and in respect of both the property and the proceeds—is in this respect illustrative and not exclusive.”]; New York City Civil Court Act § 701; see also CPLR 5233[c] [“The court may direct immediate sale or other disposition of property with or without notice if the urgency of the case requires.”] [emphasis added]).Here, principles of equity favor direct assignment of the legal malpractice claim to Plaintiff. First, the value of the claim is unclear, and thus may garner no bids of value at a sheriff’s auction. Indeed, Defendant has argued vehemently, in the original motion and here, that the claim is worthless and urges the Court to order a sheriff’s sale to permit the public, including Defendant, to engage in a valueless, time-consuming formality. Second, multiple courts have noted Defendant’s obstruction of Plaintiff’s efforts to pursue the judgment, particularly in relation to Defendant’s only confirmed asset of potential value: the malpractice claim (see Order at 2). As recently as this Order to Show Cause, Defendant has stated — notably for the first time — that a sheriff’s sale would afford the opportunity to “consider trying to borrow money (if he could) and buy [the malpractice cause(s) of action] for himself in order to protect his former attorneys [*4](including a childhood friend) from frivolous and legally-baseless claims” (Def Memo at 16). In other words, Defendant disingenuously seeks another opportunity to continue to frustrate Plaintiff’s collection efforts. Principles of equity, judicial economy, and public policy counsel against that outcome.”
“Accordingly, it is hereby
ORDERED that Defendant’s motion to vacate and reargue (motion sequence 024) is GRANTED solely to the extent that the branch of Defendant’s motion seeking reargument on the issue of whether the Court erred in assigning the potential malpractice cause of action directly to Plaintiff rather than directing a turnover to the sheriff is GRANTED; and it is further
ORDERED that upon reargument, the Court adheres to its original determination; and it is further
ORDERED that all other branches of Defendant’s motion are DENIED; and it is further
ORDERED that, within 10 days of receipt, Plaintiff shall serve this order with notice of entry upon all Defendants.
This constitutes the decision and order of the Court.”