The following papers numbered 1 to 6 read on this motion by defendant Gerard Owners Corp. for summary judgment dismissing the complaint against it and all of the cross claims against it.

Papers Numbered

Notice of Motion - Affidavits - Exhibits........................................1

Answering Affidavits - Exhibits.....................................................2-4

Reply Affidavits..............................................................................5-6

The complaint alleges that the plaintiff Faramarz Roshodesh is an incapacitated person who was represented by his guardian ad litem, Thomas Giles ("Giles") in Civil Court proceedings pending under Index Nos. 51429/06 (Proceeding I or the 7Y Proceeding), 53224/06, and 54568/06. Gerard Owners Corp., a defendant herein, began a non-payment proceeding (Proceeding I) involving cooperative Apartment 7Y in Gerard Towers, located at 70-25 [*2]Yellowstone Boulevard, Forest Hills, in Queens County, New York, whose allocated 875 shares were owned by plaintiff Roshodesh. Charlotte Goodman rented Apartment 7Y, a rent-stabilized cooperative apartment.

Pursuant to a decision and order dated March 14, 2008, a Civil Court judge granted a default judgment against Roshodesh for unpaid maintenance in the amount of $13,353.12 in favor of Gerard Owner's Corp. Roshodesh appealed and obtained a stay from the Appellate Term, dated July 7, 2008, on the condition, which he met, that he deposit the sum of $35,756.37 with the Court. However, by subsequent decision and order rendered on or about September 26, 2008, the Appellate Term vacated the stay, noting that, pursuant to CPLR 5519(a)(2), Roshodesh was entitled to an automatic statutory stay by depositing just the amount of the judgment with the Court.

As a result of an error, Gerard Owners Corp. received the entire $35,756.37 that had been deposited with the Court. Gerard Owners Corp., in receipt of more than sufficient money to satisfy the judgment, nevertheless, served an execution of judgment on the Sheriff, who, on November 19, 2008, without following lawful procedure, including notice to Roshodesh, conducted a sale of the 875 shares allocated to Apartment 7Y. Defendant Adam Plotch made a successful bid in the amount of $96,000, and Gerard Owners Corp. cancelled Roshodesh's proprietary lease for Apartment 7Y and the shares allocated to the apartment and reissued them to Adam Plotch.

The plaintiff began this action on or about September 22, 2009. The first cause of action is for a judgment declaring that the Sheriff's sale of the shares allocated to Apartment 7Y was void and that the plaintiff lawfully owns the shares. The second cause of action is against the Sheriff for negligence. The third cause of action is for an accounting of the rents paid by the tenant in Apartment 7Y to defendant Plotch. The fourth cause of action is for a "restraining order" prohibiting, inter alia, the sale of Apartment 7Y.

Defendant Gerard Owners Corp. ("Gerard") alleges the following facts, which, based on the record, the Court finds to be accurate. In early 2006, defendant Gerard began three separate summary nonpayment proceedings against plaintiff Roshodesh in the New York City Civil Court, County of Queens, which involved Apartments 3U, 3V, and 7Y respectively: (1) Gerard Owners Corp. v. Roshodesh, Index No. 53224/06 (the 3U proceeding), (2) Gerard Owners Corp. v. Roshodesh, Index No. 54568/06 (the 3V proceeding), and (3) Gerard Owners Corp. v. Roshodesh, Index No. 51429 (the 7Y proceeding). The parties never consolidated these three separate nonpayment proceedings.

In November, 2006, the judge in these summary proceedings appointed Giles as a guardian ad litem, to look after Roshodesh's interests. The parties eventually conducted a joint trial of the three proceedings before Judge Tao, on March 3, 2008, and Giles defended the proceedings on the behalf of Roshodesh, who did not himself appear. After the trial, Judge Tao awarded Gerard a judgment of $35,756.37 in the 3V proceeding, a judgment of $18,090.17 in the 3U proceeding, and a judgment of $13,393.12 in the 7Y proceeding. [*3]

Upon being served with notice of entry of the judgments and orders, Roshodesh attempted to obtain stays, and he obtained a temporary stay in the 3V proceeding conditioned upon the deposit of $35, 756.37 with the New York City Department of Finance. Roshodesh deposited this sum, but he did not deposit the sum of $13,393.12 necessary to obtain a stay of the separate 7Y proceeding.

By decision and order dated September 26, 2008, the Appellate Term for the Second and Eleventh Judicial Districts, inter alia, denied Roshodesh a stay pending the hearing and determination of his appeal from the 7Y judgment, but granted Roshodesh a stay pending the hearing and determination of appeals pertaining to 3U and 3V post-trial motions. The Department of Finance erroneously released the sum deposited in the 3V proceeding to the attorneys for Gerard, and they kept the sum in their escrow account.

Gerard entered the judgment for $13,353.12 rendered in the 7Y proceeding with the Clerk of Civil Court on March 14, 2008, and because Roshodesh failed to satisfy the judgment or deposit the amount of the judgment with the Department of Finance, on July 8, 2008, Gerard issued an execution notice with notice to garnishee (Gerard), directing the Sheriff to levy upon the shares of stock pertaining to Apartment 7Y. Roshodesh subsequently served the Sheriff with an order to show cause dated July 22, 2008.

After the Appellate Term denied Roshodesh's motion for a stay pending appeal of the 7Y judgment, Gerard issued a second execution notice to the Sheriff, directing him to levy on the shares of stock pertaining to Apartment 7Y. The Sheriff did so, and he sold the stock at a public auction held on or about November 19, 2008. Defendant Adam Plotch successfully bid $96,000 for the apartment. Roshodesh alleges that Gerard violated his rights because the landlord did not provide his guardian ad litem with notice of the public auction.

Summary judgment is warranted where, as in the case at bar, there is no issue of fact which must be tried (see, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Moore v. 3 Phase Equestrian Center, Inc., 83 AD3d 677 [2nd Dept. 2011]).

The plaintiff failed to raise a genuine issue of fact concerning whether the erroneous release by the Department of Finance of $35,756.37 to the attorneys for Gerard affected his rights as the owner of Apartment 7Y. First, the plaintiff deposited the sum of $35,756.37 in connection with a landlord tenant proceeding pertaining to Apartment 3V, a separate proceeding from that pertaining to Apartment 7Y. The plaintiff's contention that Gerard executed upon Apartment 7Y, despite being in possession of adequate funds to cover the judgment in the 7Y proceeding, is erroneous.

The Appellate Term, in its decision and order dated September 26, 2008, indeed, expressly noted that "no possessory judgment was awarded in the proceeding brought up for review, under Appeal No. 2008-1660 QC [regarding Apartment 7Y], and that tenant may obtain a stay of said judgment by depositing the amount of the judgment into the court below." Plaintiff [*4]Roshodesh failed to make the deposit, and there was no stay which precluded Gerard from executing on the shares pertaining to Apartment 7Y.

Second, Roshodesh deposited the sum of $35,756.37 with the Department of Finance to obtain a stay in the 3V proceeding. Although the release of such funds to the attorneys for Gerard was erroneous at the time, Roshodesh was not entitled to the return of those funds to himself upon his demand. Those funds were not available to him to obtain a stay in the 7Y proceeding. Third, Roshodesh made no evidentiary showing that he lacked other assets that could be used to obtain a stay in the 7Y proceeding. Conclusory assertions in an attorney's hearsay affirmation have no probative value on a motion for summary judgment (see, Lampkin v. Chan, 68 AD3d 727 [2nd Dept. 2009]).

The plaintiff also failed to raise a genuine issue of fact concerning whether Gerard violated his rights by not informing the Sheriff that the judge presiding in the Housing Court had appointed a guardian ad litem for him. Roshodesh knew about the pending sale, and either he or his guardian ad litem acted to protect his rights by serving the Sheriff with an order to show cause, dated July 22, 2008.

CPLR 5233, entitled "Sale of personal property," moreover, requires notice to the public, not notice to the debtor or his guardian ad litem. The Court notes that for the purposes of CPLR Article 52, shares in a cooperative and the related proprietary lease are treated as personal property (see, Matter of State Tax Commn. v Shor, 43 NY2d 151 [1977]; Darling v. Darling, 22 Misc 3d 343, 348 [Sup Ct. Kings County 2008] [Battaglia, J.]). Roshodesh has failed to cite any authority, statute, or case requiring that notice of the sale be given specifically to the debtor.

Defendant Gerard carried its burden on this motion of making a prime facie showing of its entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hospital, 68 NY2d 320, supra), and, when the burden shifted, plaintiff Roshodesh failed to demonstrate that summary judgment is not warranted.

The foregoing constitutes the Court's decision, order, and opinion.

Dated: June 29, 2011

J.S.C.