### Hernandez v Samouha 2024 NY Slip Op 31360(U) April 17, 2024 Supreme Court, New York County Docket Number: Index No. 153558/2018 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.

## FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 153558/2018 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/18/2024

1 of 5 PRESENT: 

## SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY HON. JOHN J. KELLEY PART Justice 56M 

### --------------------X INDEX NO. 153558/2018

DOMINGO A HERNANDEZ,

- V - MOSHE SAMOUHA, Plaintiff,

Defendant. 

### -------------------X MOTION DATE 04/12/2024 MOTION SEQ. NO. 003 DECISION 

### + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57,58,59,60,61,62,63,64,65,66,67,68,82, 86,87,88, 89, 90, 91 were read on this motion to/for INJUNCTION/RESTRAINING ORDER This is an action to recover damages for personal injuries, arising from a slip-and-fall accident in front of a Manhattan apartment building (the building) that had been owned by the defendant on the date ofthe accident. The plaintiff moves for a post-judgment injunction restraining the defendant from selling or encumbering that building. The defendant opposes the motion. The motion is deemed to be one pursuant to CPLR 5203(a) and 5222 forjudicial recognition that the defendant is prohibited from selling or encumbering that building, and the motion is thereupon granted. On March 21, 2023, the matterwas called for trial before Justice James d'Auguste, but the defendantfailed to appear. On March 23, 2023, Justice d'Auguste, in effect, struckthe defendant's answer pursuant to 22 NYCRR 202.27, and directed the entry ofa defaultjudgment against him on the issue of liability. On March 24, 2023, this court conducted an inquest on the issue ofdamages. In a decision and order after inquest dated September 25, 2023, this court determined that the plaintiffwas entitled to recover the principal sum of$450,000 from the defendant, plus statutory prejudgment interest at the rate of9% per annum, from March 24,

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## FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 153558/2018 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/18/2024

2 of 5 2023. On November 8, 2023, the Clerk ofthe court entered judgment in favor ofthe plaintiff and againstthe defendant in the total sum of$476,748.47. The plaintiff now seeks to restrain the defendants from selling, transferring, or encumbering the building so that it may be levied upon and sold to satisfythejudgment. The plaintiff styles his motion as one for a preliminary injunction. The purpose ofa preliminary injunction, however, "is to maintain the status quo while an action is pending" (Zheng v Cityof New York, 92 AD3d 412, 413 [1st Dept 2012]). An action remains "pending" until there is a final judgment entered in the action, either awarding reliefto the plaintiffordismissing the complaint (see CPLR 5011; Cooke-Garrett v Hoque, 109AD3d 457, 457 [2d Dept 2013]; see also State of New York Mtge. Agency v Braun, 182AD3d 63. 68-69 [2d Dept 2020]; US BankNatl. Assn. v Saintus, 153AD3d 1380, 1382 [2d Dept 2017]; Knapek v MVSouthwest Cape, 110AD2d 928, 929 [3d Dept 1985]). The defendant correctly argues that, inasmuch as a final judgment has been entered in favor ofthe plaintiff here, the action is no longer pending, and relief in the nature ofa preliminary injunction is no longer available. Nonetheless, CPLR 5203(a) provides, with certain exceptions not pertinent here, that, "[n]o transfer ofan interest ofthejudgment debtor in real property, against which property a moneyjudgment may be enforced, is effective againstthejudgment creditor eitherfrom the time ofthe docketing ofthe judgmentwith the clerk ofthe county in which the property is located until ten years afterthe filing ofthe judgment-roll, orfrom the time ofthe filing with such clerk ofa notice of levy pursuant to an execution until the execution is returned" Thus, "a judgment, once docketed, becomes a lien on the real property ofthe judgment debtor in the county ofdocketing" (see Cadle Co. v Calcador, 85 AD3d 700, 702 [2d Dept 2011]; Matter ofAccounts Retrievable Sys., LLC v Conway, 83 AD3d 1052, 1053 [2d Dept 2011]; Soressiy SWF, L.P., 81 AD3d 1143 [3d Dept 2011]). Additionally, CPLR 5222(a) provides, in relevant part, that "[a] restraining notice may be issued by the clerk ofthe court orthe attorney forthe judgment creditor as officer ofthe court." CPLR 5222(b) provides that, with certain exceptions not applicable here, "[a] judgment debtor or obliger served with a restraining notice is forbidden

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## FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 153558/2018 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/18/2024

3 of 5 to make or suffer any sale, assignment, transfer or interference with anypropertyin which he or

- she has an interest:

.. until thejudgment ororder is satisfied orvacated" (emphasis added).

While service ofa restraining notice served pursuantto CPLR 5222 does not create a lien on real property (see Freedman vHason, 2016 NY Slip Op 32611[U], *4, 2016 NY Misc LEXIS 4877, *6 [Sup Ct, Nassau County, Apr. 11, 2016]), "the restraining notice serves as an injunction prohibiting the transfer ofthejudgment debtor's property" (DistressedHoldings, LLC v Ehrler, 113AD3d 111, 116 [2d Dept 2013]). Thus, the plaintiff is statutorily entitled to a restraint on the sale ortransfer ofthe defendant's real property until thejudgment is satisfied, either by operation ofCPLR 5203(a), by service ofa restraining notice upon the defendant pursuantto CPLR 5222(a), or byjudicial recognition ofthe restraint that is memorialized in an order. The only question thus is whether the defendant currently is the true "owner'' ofthe building. The court concludes that, for purposes of restraining the sale ortransfer ofthe building, and levying thereon, the defendant is indeed the legal owner. The plaintiff alleged that he slipped and fell in front ofthe subject building on January 6, 2018, and he commenced this action on April 18, 2018. As of both ofthose dates, the defendant owned the building. On March 9, 2020, the defendant's attorney, Mark Krasner, in response to the plaintiff's demand pursuant to CPLR 3101 (f), informed the plaintiffthatthe defendant did not have "any insurance policies underwhich any insurance company may be liable to satisfy part or all ofajudgment which may be entered in this action orto indemnify or reimburse for payments made to satisfy thejudgment." In an order dated November 18, 2020, the court (d'Auguste, J.) granted Krasner's motion to be relieved as counsel. On December 27, 2020, and, thus, while this action was pending, and afterthe defendant's attorney was relieved ofthe obligation of representing him, the defendanttransferred title ofthe subject real property to his solely owned limited liability company, 1985Amsterdam, LLC, for no consideration whatsoever, despite the fact that the building had an assessed value of$1,565,000.

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## FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 153558/2018 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/18/2024

4 of 5 The currentversion of Debtor and Creditor Law§ 273(a}, enacted pursuant to L 2019, ch 580, § 2, effective April 4, 2020, provides that, "[a] transfer made or obligation incurred by a debtor is voidable as to a creditor, whetherthe creditor's claim arose before or afterthe transferwas made orthe obligation was incurred, ifthe debtor made the transfer or incurred the obligation: "(1) with actual intentto hinder, delay ordefraud any creditor ofthe debtor; or "(2) without receiving a reasonably equivalent value in exchange forthe transfer or obligation, and the debtor: ***** "(ii)

... believed or reasonably should have believed that the debtor would incur [ ] debts beyond the debtor's ability to pay as they became due." This section replaced, among otherthings, former Debtor and Creditor Law § 273-a which was repealed pursuant to L 2019, ch 580, § 2, effective April 4, 2020, and had provided, in relevant part, that, "[e]very conveyance made without fair consideration when the person making it is a defendant in an action for money damages

... is fraudulent as to the plaintiff in that action without regard to the actual intent ofthe defendant if, afterfinal judgmentforthe plaintiff, the defendant fails to satisfy thejudgment." Inasmuch as the defendant effectuated the conveyance ofthe building to his solely owned limited liability company subsequentto the repeal of Debtor and Creditor Law § 273-a, that provision is inapplicable, and the newversion of Debtor and Creditor Law § 273 applies to this dispute. Nonetheless, the plaintiffdemonstrated that his claim arose priorto the transfer, that the defendant's transfer ofthe building to his limited liability company was clearly effectuated without fair consideration, and that the defendant "believed or reasonably should have believed" that he would incur "debts beyond" his "ability to pay as they became due," specifically, that he would become subject to ajudgment debt in this action. Hence, the conveyance is voidable by the plaintiff, even ifthe plaintiffcannot demonstrate that the defendant "intended" the transferto hinderordelay the plaintiff's ability to collect any moneyjudgment againstthe defendant. The defendantthus is deemed to own the

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## FILED: NEW YORK COUNTY CLERK 04/18/2024 12:55 PM INDEX NO. 153558/2018 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/18/2024

5 of 5 building forthe purposes of restraining its furthertransfer or sale, and forthe purpose of compelling a sale ofthe building to satisfy thejudgment entered against him in this action. The court concludes that, by making the instant motion, the plaintiff has elected to void the transfer. In light ofthe foregoing, it is, ORDERED that the plaintiff's motion is deemed to be a motion pursuantto CPLR 5203(a) and 5222 forjudicial recognition that the defendant, both individually, and as the sole member of 1985Amsterdam, LLC, is prohibited from selling, transferring, or encumbering the real property and building located at 1985 Amsterdam Avenue, NewYork, NewYork, the motion is thereupon granted, and the defendant, both individually, and as the sole memberof 1985 Amsterdam, LLC, be, and hereby is, prohibited from selling, transferring, or encumbering the real property and building located at 1985Amsterdam Avenue, NewYork, NewYork, pending further order ofthe court. This constitutes the Decision and Order ofthe court.

4/17/2024

DATE

CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

153558/2018 HERNANDEZ, DOMINGO A. vs. SAMOUHA, MOSHE Motion No. 003

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER

### □ REFERENCE

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