You are here: / / CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here...
,

CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here Defendant’s Brother Brought a CPLR 5239 Proceeding to Vacate an Execution Against the Brother’s Property Which Purported to Relate to a Debt Owed by Defendant—The Execution Was Vacated Based Upon the Brother’s Proof of Ownership

The Second Department determined Kamel, a non-party, had demonstrated that he did not have an ownership interest in property which was executed against to satisfy a judgment against the defendant, Kamel’s brother. The court explained the procedure to vacate an execution pursuant to CPLR 5239:

Pursuant to CPLR 5239, “any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt” (CPLR 5239…). The court may “vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded” and, if necessary, may hold a hearing to determine the proper disposition (CPLR 5239…). As the party seeking relief, “it [is the] petitioner’s burden to proffer evidence demonstrating that the property was not subject to the lien identified in the notice of sheriff’s sale” … .

At the hearing, Kamel presented mortgage documents relating to the purchase of the LIC property, as well as documents identifying him as the principal of the LLC which held legal title to that property and his own personal guaranty for the $1.45 million mortgage loan for that property. Accordingly, Kamel met his burden of demonstrating that the LIC property was not subject to execution … . Born to Build LLC v Saleh, 2015 NY Slip Op 01232, 2nd Dept 2-11-15

 

You might also like
PLAINTIFF IN THIS SLIP AND FALL CASE ENTITLED TO SEVERANCE OF THE ACTION AGAINST THE PROPERTY OWNER, WHICH FILED FOR BANKRUPTCY, AND THE SNOW REMOVAL CONTRACTOR (SECOND DEPT).
TRIAL COURT FAILED TO INSTRUCT THE JURY THAT FINDING DEFENDANT NOT GUILTY OF THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE LESSER COUNTS, NEW TRIAL REQUIRED (SECOND DEPT).
PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL.
LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT).
PURSUIT OF DEFENDANT, WHO RAN, HOLDING HIS WAISTBAND, WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED.
Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable
WHERE CONVICTIONS UNDER MULITPLE INDICTMENTS COME UP FOR REVIEW IN THE SAME SORA HEARING, THE BOARD OF EXAMINERS OF SEX OFFENDERS SHOULD PREPARE A SINGLE RISK ASSESSMENT INSTRUMENT ENCOMPASSING ALL THE OFFENSES (SECOND DEPT).
BASED UPON THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM, DEFENDANT SHOULD HAVE BEEN PRESENT AT THE IN CAMERA INTERVIEW OF THE STATUTORY-RAPE COMPLAINANT TO DETERMINE THE RELEVANCE OF HER PSYCHIATRIC HISTORY (A MATERIAL STAGE OF THIS PROCEEDING); DEFENDANT’S STATEMENT FOR WHICH NO 710.30 NOTICE WAS PROVIDED SHOULD NOT HAVE BEEN ADMITTED; THE MOLINEUX EVIDENCE OF INTENT, MOTIVE, OR LACK OF MISTAKE WAS NOT RELEVANT TO STATUTORY RAPE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata ... Police May Direct Occupants to Step Out of the Car After a Vehicle-Stop