Appointment to Grievance Committee: Richard Klass

Richard A. Klass, has been appointed to serve a 4-year term on the Grievance Committee for the Appellate Division Second Department for the Second, Eleventh and Thirteenth Judicial Districts.

Members of the Grievance Committee serve to maintain the honesty, integrity and professional competence of the legal profession and protect the general public by enforcing the Rules of Professional Conduct.


R. A. Klass
Your Court Street Lawyer

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Ninth Incarnation of Trade Brooklyn Largest Ever

This past April, the Law Firm of Richard A. Klass was pleased to participate in Trade Brooklyn. This year’s show, with the theme “Year of the Entrepreneur,” was focused on the interests of small business owners. Over 150 New York City businesses were present. Jonathan Levin of Cardinal Trade Group helped produce the show which included over 18 seminars on topics such as search engine optimization, marketing and social media.

The Brooklyn Bar Association (“BBA”) hosted a continuing legal education (“CLE”) course entitled “The Importance of Legal Counsel for Small Businesses” presented by lawyers Richard A. Klass, Gregory S. Lisi and Jeffrey R. Miller. BBA’s CLE Director Danielle Levine described the course as being “crafted specifically so that it would appeal to lawyers and give non-lawyers valuable information too.”

Rob Abruzzese, with the Brooklyn Daily Eagle, wrote an article about the Trade Brooklyn show which you can find by following this link.

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copyr. 2015 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Enforcing Judgments Against Bank Accounts Held Outside N.Y.

By Richard A. Klass and Elisa S. Rosenthal

[This article first appeared in the November 20, 2014 edition of the New York Law Journal.]

New York Civil Practice Law and Rules Article 52 dictates the procedures that a judgment creditor must follow to exercise its rights to enforce a judgment entered in New York.

When both the judgment debtor and its assets are located within New York State, the procedure is fairly straightforward. When the assets of the judgment debtor are located outside of New York State, however, the ability to levy upon the judgment debtor’s assets can be tricky.

There are several factors that both federal and state courts in New York have considered in determining whether or not assets held in another state can be used to satisfy a New York judgment, including: (a) the separate entity rule; (b) jurisdiction; and (c) the type of proceeding.

The Separate Entity Rule

The separate entity rule, one which was adopted from the old English common law, provides that each branch of a bank is considered to be a separate entity. The mere fact that a bank may have a branch inside of New York is insufficient to render accounts outside of New York subject to attachment by a New York court. See Motorola Credit Corp. v. Uzan, 288 F.Supp.2d 558 (S.D.N.Y. 2003).

In 2009, the separate entity rule was loosened by the Court of Appeals, due to the computerization of bank information and centralized systems, Digitrex v. Johnson, 491 F.Supp. 66 (S.D.N.Y. 1980). Indeed, in Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009), the New York State Court of Appeals held that the Legislature intended CPLR Article 52 to have extraterritorial reach when it amended CPLR 5224 (Consol. 2011) to facilitate the disclosure of materials located outside of New York to judgment creditors seeking to collect a judgment.

Following Koehler, courts facing similar issues wondered whether the separate entity rule had been completely abrogated by Koehler. See, e.g.,Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v. Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). Subsequent decisions, particularly in the First Department, however, have held that if the Court of Appeals had intended to eliminate the separate entity rule, it would have, and that “any future exception to the separate entity rule would require a pronouncement from the Court of Appeals or an act of the Legislature.” Ayyash v. Koleilat, 38 Misc.3d 916, 924 (Sup. Ct. New York Co. 2012) citing Nat’l Union Fire Ins. Co. v. Advanced Empl. Concepts, 269 A.D.2d 101 (1st Dept. 2000).

In fact, several trial courts since Koehler have instead held by the traditionally well-settled rule that “in order to reach a particular bank account the judgment creditor must serve the office of the bank where the account is maintained.” See, e.g., Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). The Court of Appeals’ deliberate sidestepping1 the issue of the separate entity rule in Koehler may be the impetus for its most recent determination in Motorola Credit v. Standard Chartered Bank, decided on Oct. 23, 2014.

In a divided opinion, the Court of Appeals, in Motorola, affirmed the long-standing common law tenet of the separate entity rule, holding that “limiting the reach of CPLR 5222 restraining notice in the foreign banking context, the separate entity rule promotes international comity and serves to avoid conflicts among competing legal systems.” Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *11 [Oct. 23, 2014].

Jurisdiction

The Court of Appeals in Koehler analyzed the issue of jurisdiction in connection with judgment enforcement proceedings. The court explained that since a post-judgment enforcement action is against a person, and the purpose of the proceeding is to force the person to convert property he owns into money for payment to a creditor, that New York has the authority to order the holder of a judgment debtor’s asset to turn over property of the judgment debtor held outside the state if the court has personal jurisdiction over a judgment debtor. Koehler, 12 N.Y.3d at 540, citing Siegel, N.Y. Prac. §510, at 866 [4th ed].

In Koehler, the plaintiff sought to enforce a domesticated foreign judgment as against the defendant by issuing a restraining notice to the Bank of Bermuda, which it asserted held stock on behalf of the defendant. The court established personal jurisdiction over the defendant based upon defendant’s willingness to subject itself to the court’s jurisdiction without objection. The court then determined that, based upon its in personam jurisdiction over the defendant, it can extend its reach to assets of the defendant, even when those assets are held outside of New York State, either in another state or another country. Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009). In fact, the court in Koehler went so far as to hold that the broad language of CPLR Article 52 extends to the turnover of out-of-state assets held by a garnishee. Id. at 541.

Utilizing a jurisdictional analysis to determine whether the out-of-state assets of a judgment creditor can be turned over, as in Koehler, has precedential support. In U.S. v. First Nat’l City Bank, the case involved notice and levy of a federal tax lien upon all of the assets of an Uruguayan corporation. U.S. v. First Nat’l City Bank, 379 U.S. 378 (1965). The United States sought to foreclose its tax lien upon all sums held for the corporation in the Montevideo branch office of the bank. Id. The bank had been served with an injunction preventing the bank from transferring any assets of the corporation during the pendency of the foreclosure, but the corporation had not been served. Id.

The U.S. Supreme Court held the bank “has actual, practical control over its branches; it is organized under a federal statute, which authorizes it to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons as one entity, not branch by branch. Id. The branch bank’s affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the home office…” Id.

Although the determinations in Koehler and First Nat’l City Bank appear to put to bed the issue of New York’s jurisdiction over out-of-state bank branches, there remains an important factor to address before determining whether, in fact, a judgment should, or needs to be domesticated in a foreign state or whether New York can assert its jurisdiction. The remaining issue is determining whether the proceeding is an attachment proceeding, an injunction proceeding or a turnover/garnishment proceeding.

Collection Proceedings

Under New York law, there are several different ways in which a debtor’s assets can be reached; (a) attachment; (b) turnover proceeding; and (c) restraining notice/execution.

Attachment: An attachment proceeding is a pre-judgment remedy involving the seizure of the defendant/debtor’s property so that they are no longer able to use the property in order to ensure satisfaction of a prospective judgment. Attachment proceedings in New York are governed by CPLR Article 62, and as stated in Koehler, enable a court to have jurisdiction over the property rather than the person. Koehler, 12 N.Y.3d at 539, (“It is a fundamental rule that in attachment proceedings, the res must be within the jurisdiction of the court issuing the process in order to confer the jurisdiction”).

In Abuhamda, moneys were transferred from a bank branch located in New York to a branch in Jordan. Abuhamda v. Abuhamda, 654 N.Y.S.2d 11 (1st Dept. 1997). The court held that it had the authority to order a preliminary injunction to direct the bank to freeze the account in Jordan, based upon the Supreme Court’s ruling in First Nat’l City Bank. Id. The fact that the bank did business in New York State subjected the bank to its jurisdiction. Id.

Turnover Proceeding: A turnover proceeding is a post-judgment special proceeding, under CPLR Article 52, in which the judgment creditor may obtain an order from the court forcing a third-party garnishee in possession of property belonging to the judgment debtor to turn the property over to the judgment creditor. The analysis performed in Koehler resulted in a determination that “a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or garnishee.”

In Gryphon, the plaintiff, through a turnover proceeding, sought to have assets of the defendant turned over to the plaintiff to satisfy the judgment issued against the defendant based upon its non-payment of guaranteed notes. Gryphon Dom. VI v. APP Int’l. Fin. Co., 41 A.D.3d 25 (1st Dept. 2007). The court held that New York had jurisdiction over the defendant based upon the language of the notes and that on the basis of the court’s jurisdiction over the defendant it could order the turnover of assets held outside of New York. Id.

Although the Court of Appeals in Koehler appeared to give broad discretion to a judgment creditor in terms of its ability to enforce its judgment, in 2013, the court narrowed the holding in Koehler in the case of Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013).

In Commonwealth of Northern Mariana Islands, the issue became one of not just possession and custody, but of control over the judgment debtor’s assets. Id. The court held that the bank’s parent company in Toronto maintained possession and custody over the judgment debtor’s assets, not the subsidiary, and the fact that the holder of the assets controls the subsidiary was not sufficient to “compel another entity, which is not subject to this state’s personal jurisdiction, to deliver assets held in a foreign jurisdiction.” Id.

Restraining Notices/Execution: A restraining notice or execution does not necessarily require court assistance or intervention. Once the court has issued a judgment, the judgment creditor may pursue collection of that judgment pursuant to the rules laid out in CPLR Article 52, including issuance of an income execution, a restraining notice upon a bank, or an execution issued to the sheriff to levy upon property owned by the judgment debtor.

In Global Tech., a restraining notice relative to a judgment was served upon a defendant, Royal Bank of Canada, on its New York branch. The court in Global Tech. discussed that, “a party that seeks a restraining notice need only engage an attorney, who is authorized to issue a restraining notice as an officer of the Court. The court has no involvement with the issue of whether service of the restraining notice upon the garnishee comports with due process until the garnishee challenges the restraining notice…when serving a restraining notice of assets held outside the state, the restraining notice must be served upon the individual bank branches holding the assets of the judgment debtor, rather than the home office or a branch within the State of New York.” Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012).

The holding in Global Tech. has support in Koehler as well. In the court’s analysis of CPLR 5225(a)-(b) (Consol. 1964), the court took special note of the how the authority is invoked; in CPLR 5225(a) the judgment creditor must file a motion to order the judgment debtor to turn over property in his possession, while CPLR 5225(b) requires a special proceeding by the judgment debtor over a garnishee who is not a party to the main action. See Koehler, 12 N.Y.3d at 541.

In Motorola, the issue with Standard Chartered Bank began when Motorola served a restraining order on the New York branch of the defendant, a foreign bank from the United Kingdom. Motorola argued that based upon Koehler, the separate entity rule was no longer valid law. Standard Chartered Bank disagreed, asserting the separate entity rule is essential in the realm of international banking. The Court of Appeals’ determination affirmed Standard Chartered Bank’s position that “abolition of the separate entity rule would result in serious consequences in the realm of international banking.” Motorola v. Standard Chartered Bank at *13.

On the question of how to enforce a judgment against a judgment debtor against assets held outside of New York, a determination of the type of enforcement action must first be ascertained. If the judgment creditor prefers collection by a restraining notice, the separate entity rule applies, and the judgment should then be domesticated in the foreign jurisdiction in order to assert jurisdiction over the assets. Should the judgment creditor instead prefer to enforce its judgment by a turnover proceeding, the court can assert its authority over assets held outside of the state so long as the court has exercised its jurisdiction over the holder of the assets.

Endnotes:

  1. “Notably absent from our decision in Koehler was any discussion of the separate entity rule.”Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *9 (Oct. 23, 2014).

Richard A. Klass is an attorney with the Law Office of Richard A. Klass in Brooklyn. Elisa S. Rosenthal is an associate of the firm.

Reprinted with permission from the November 20, 2014 edition of the New York Law Journal © 2014 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

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The firm’s website: www.CourtStreetLaw.com

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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A Man’s House is (Not Always) His Castle

© Thomas Wolf, www.foto-tw.de. CC BY-SA 3.0 de. The photo shown here is a low resolution version of the original photo.A New York City college bought an old garage on a residential street with the intention of eventually tearing it down and using the vacant lot in the development of a 17-story building. The owner of the adjacent apartment building was more than glad to have the college demolish the garage, which had become an eyesore. In order to demolish the garage, however, the college needed to enter the adjacent property to erect bridge scaffolding around the apartment building. But the college offered little protection to the owner other than promising to pay for any damage it might cause to the apartment building during the demolition.

Alleging that the apartment building owner refused to consent, the college brought a petition for a court order to allow its contractor to enter upon the adjacent property to erect the scaffolding. The adjacent apartment building owner retained Richard A. Klass, Esq., Your Court Street Lawyer, to oppose the petition and negotiate a license agreement with the college to grant access, but only upon meeting certain, reasonable conditions.

In the current economic and political climate in New York City, which encourages building more and more housing units for the multitudes, it is not surprising that current property owners are experiencing “growing pains.” Among those “growing pains” are the inconvenience and annoyance they experience when a developer buys land next to their property, seeking to build on that land, and needs to gain access to the neighboring property to do the work. Such access may be needed to move equipment, build up to the property line, or deliver material to the building site.

RPAPL 881 grants a license to enter property

New York law seeks to find middle ground between the property developer and the neighboring owner so that the developer may build its structure while the neighbor can be left relatively undisturbed. Real Property Actions and Proceedings Law (RPAPL) Section 881 provides as follows:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

Essentially, if a developer must gain access to the adjacent property, it must first make a request upon that property owner. If turned down, the developer can then file a petition to ask the court to grant a license to enter the premises for a reasonable period of time.

Courts apply a ‘balancing test’

The court must balance the competing interests of the parties and should grant the issuance of the license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is outweighed by the hardship of its neighbor if the license is refused. In Rosma Development LLC v. South, the court granted a developer a license to enter the adjacent property, recognizing that the developer’s property interests in completing its project (and as quickly as possible in order to avoid unnecessary delay and expense) outweighed the temporary inconvenience to the neighbor.

Provisions of a license agreement

Courts have held that reasonable conditions of a license agreement under RPAPL 881 may include:

  1. Providing the owner with the details and schedule of the work to be done;
  2. Conducting pre-construction inspections and monitoring for cracks, vibrations, and noise during construction;
  3. Paying the owner’s fees for engineers, attorney’s fees, and other expenses;
  4. Imposing penalties in the event of noncompliance with the license, including the failure to complete the work in a timely fashion;
  5. Taking steps after construction is complete to close up lot-line windows or resolve any structural wall issues; and
  6. Ensuring that an adequate liability insurance policy is in effect in the event that actual damages occur.

In resolving the college’s petition, the parties negotiated an extensive agreement that ultimately allowed the judge to approve the license to enter the adjoining property.

by Richard A. Klass, Esq.

R. A. Klass
Your Court Street Lawyer

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Tender of Payment

A seldom-used tactic in litigation is the “tender” of payment by a defendant of an amount which is believed to be due to the plaintiff. If the proper amount is tendered, and the plaintiff does not accept that amount, then the defendant will not be found liable for interest and court costs.

This legal tactic was successfully used by the author in a case involving the building of a large boys’ yeshiva. The yeshiva purchased a building to tear it down and construct a new school. The prior owner took back a mortgage from the yeshiva for $900,000, with interest-only payments for 15 years and no prepayments allowed. Shortly after the purchase, the yeshiva obtained work permits to demolish the existing structure to build the new school building.

The mortgagee/prior owner brought an injunction action, claiming that the demolition of the existing structure violated the terms of the mortgage (a common clause in the form of mortgage states that the mortgagee’s consent is needed before alteration of the structure on the mortgaged premises in order to protect the value of the collateral). During the course of ongoing court conferences, the yeshiva offered to pay off the mortgage in full, but the mortgagee was insistent on obtaining not only the principal amount of $900,000 but also the future 14 1/2 years’ worth of interest (a windfall of about $1.2 million).

The mortgagee then decided to unilaterally declare a default under the mortgage, alleging that the disconnection of the water and electric lines amounted to an alteration of the structure; her attorney served an “acceleration notice,” demanding the payment of the mortgage in full plus accrued interest.

From an initial review of the situation, it looked bleak for the yeshiva. But, upon further examination, the concept of “tender” saved the day! The yeshiva collected pledges totaling $911,000 (the principal amount plus accrued interest to the date of tender) and deposited that amount with the Clerk of Kings County as a “tender.” A motion was then made to dismiss both the injunction and foreclosure actions based upon the tender.

The court held that there was a valid tender, since the mortgagee accelerated the mortgage note, seeking the unpaid principal amount with “accrued” interest. Based upon the ambiguity of the language of the mortgage note, “accrued interest” may have meant interest accrued only to the date of default or future interest past the date of default.

Tender can be effectively utilized in situations where the defendant expects to owe something to the plaintiff but nowhere near the amount claimed. A tender can place a greater onus on the plaintiff to substantiate additional damages. Further, it can be a good method of settling a case by offering the plaintiff an amount which it may be willing to accept to terminate the litigation.


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