FIRST NATIONAL BANK V. BROOKS
PAGE 2

Plaintiff moves for summary judgment in this action seeking the entry of a "renewal"

judgment, pursuant to CPLR §5014.

Plaintiff received a judgment against the defendant in this Court 18 years ago, in 1985. A balance remains due and owing. The plaintiff seeks a new judgment for this remaining balance.

It is suggested that the plaintiff's application is untimely. CPLR §5014(1) provides that an action on a judgment may be maintained where ten years have elapsed since the first docketing of the judgment, and a final paragraph of CPLR §5014 provides that "[a]n action may be commenced under subdivision one...during the year prior to the expiration of ten years. . . ." This latter language, it is argued, is mandatory, and the plaintiff having failed to explain or excuse the absence of a timely application, the relief sought by the plaintiff must be denied. [*2]

This suggestion is the result of a common misunderstanding of the purpose, as reflected in the language and structure, of this little-written-upon provision.

CPLR §5014 permits, in certain circumstances, an "action upon a money judgment ...between the original parties to the judgment. . . ."

"Why," Professor Siegel asks, "should any judgment creditor ever want to bring an

FIRST NATIONAL BANK V. BROOKS
PAGE 3

'action' on a judgment? Why doesn't the judgment creditor just issue an execution on the judgment that already exists and have the sheriff levy the execution and satisfy the judgment?" Siegel, N.Y. CPLR §5014, Practice Commentary C5014:1 (McKinney's).

In Practice Commentary C5014:2, Professor Siegel answers the question he has raised, in relevant part: It is because a New York judgment remains a lien on real property for only 10 years, pursuant to CPLR §5203(a), and is conclusively presumed paid unless an action on it is commenced within 20 years, pursuant to CPLR §211(b). Thus, a party who has in fact not been paid, and who still wishes to keep the judgment, or the lien of it, in effect, must bring an action on the judgment within those time periods.

Presumably in order to prevent ceaseless and continual harassment of defendants, CPLR §5014(1) generally limits a judgment creditor's ability to bring such an action until 10 years after the original judgment was docketed, i.e., until such an action has become necessary in order to maintain the judgment's full efficacy. There is one proviso, and that proviso is itself tailored to meet that same need: Because some courts previously dismissed actions commenced prior to 10 years from the original docketing of the judgment as "premature" under CPLR §5014(1), see Brookhaven Memorial Hospital, Inc. v. Hoppe, 65 Misc.2d 1000 (Dist. Ct., Suffolk Co. 1971), thus resulting in a lapse in lien protection, the legislature in 1986 enacted a final paragraph to CPLR §5014 permitting (but certainly not requiring) the action to be commenced after 9 years

FIRST NATIONAL BANK V. BROOKS
PAGE 4

had elapsed, but with the lien of the renewal judgment not then to take effect until simultaneously with the expiration of the prior judgment lien. See, Practice Commentary 5014:2.

In the instant case, the plaintiff/judgment creditor waited well beyond the minimum 10 year period, thus allowing his prior lien to lapse. By starting afresh and obtaining a judgment in this action, however, the plaintiff will obtain a new 20 year judgment, and a new ten year lien. Quarant v. Ferrara, 111 Misc.2d 1042 (Sup. Ct., Queens Co. 1981). No question of timeliness is presented. [*3]

The plaintiff's motion for summary judgment is granted. Judgment for the balance remaining may be submitted to, for entry and docketing by, the Clerk.

So Ordered.

DISTRICT COURT JUDGE

Dated: September 22, 2003

CC: Kirschenbaum & Phillips, P.C.

Robert Brooks, pro se
KLG:ms
Decision Date: September 22, 2003