[App Div 1st Dept]

Missing document charge

Krin v Lenox Hill Hosp., 2011 NY Slip Op 07498 (1st Dept., 2011)

The court properly exercised its discretion in directing that a missing document charge be given at the end of the trial in this case. While the record presents questions about whether
the pertinent document, a cosmetic operative report which defendants failed to turn over to plaintiff, ever existed in their file, there exists sufficient evidence from which a reasonable person could conclude that defendant's dictation of this report was transcribed and was, at one time, in his file. Defendant, Thomas Romo, admits that he dictated the document for transcription, and the functional operative report from the same operation was discovered in his file. Thus, the issue as to whether any spoliation of evidence actually occurred should be presented to the jury, along with the inferences to be drawn therefrom (see Marcano v Calvary Hosp., Inc., 13 AD3d 109 [2004]). Defendants will then be permitted to argue to the jury that the document either never existed in his file, is irrelevant to the issue of this case, that other documents cover the same information, or any other issue he believes will persuade the jury that no adverse inference is warranted. Under the circumstances of this case, the court's sanction was "appropriately tailored to achieve a fair result" (Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 [2003][internal quotation marks and citation omitted]).

Proving a negative

Arias v Skyline Windows, Inc., 2011 NY Slip Op 07725 (1st Dept., 2011)

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff maintenance worker alleges that he was injured when, while pulling a trash container, he slipped on broken glass and fell, resulting in the trash container rolling over his foot. Defendant was the company that had been hired to replace and install new windows at the building where plaintiff worked. Defendant failed to demonstrate that its employees did not perform work at the location until after the day of the subject accident. Although an "affidavit[] indicating that a search of business records had demonstrated a negative is admissible" and can substantiate a summary judgment movant's initial burden (Dickson v City of New York, 43 AD3d 809 [2007]; see Piccinich v New York Stock Exch., 257 AD2d 438 [1999]), here, the affidavit of defendant's director of field operations for volume was inconsistent with his own deposition testimony and indicated a lack of "familiarity with the . . . project at issue" (Barraillier v City of New York, 12 AD3d 168, 169 [2004]).

Even were we to determine that defendant met its initial burden, plaintiff's opposition raised triable issues as to whether defendant's employees were responsible for creating the condition that caused his injuries. Plaintiff testified that he observed defendant's employees at the building in the days prior to the accident and the affidavit of plaintiff's coworker is consistent with plaintiff's testimony. Although defendant disputes the veracity of the coworker's affidavit, its truth is presumed at this procedural posture where the court's duty is to find issues rather than determine them (see Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

More than one 3212 = no. And other stuff. And “a reasonable opportunity to conduct discovery”

Courthouse Corporate Ctr., LLC v Schulman, 2011 NY Slip Op 07801 (2nd Dept., 2011)

The defendants' motion for summary judgment dismissing the third cause of action was based on matters that could have been, but were not, raised in the defendants' prior motion for summary judgment. Multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly-discovered evidence or other sufficient cause (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290; Dillon v Dean, 170 AD2d 574). Accordingly, the Supreme Court correctly denied the defendants' motion.

Mintz & Gold, LLP v Zimmerman, 2011 NY Slip Op 08490 (1st Dept., 2011)

This was defendants' second motion for summary judgment. The motion court should have denied it on that basis, as defendants did not present sufficient cause for their successive motions (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426 [2011]). Even were we to reach the merits we would affirm because plaintiff was not required to plead special damages to set forth its claim under Civil Rights Law § 70, (see Civil Rights Law § 71).

Rubistello v Bartolini Landscaping, Inc., 2011 NY Slip Op 06483 (2nd Dept., 2011)

On its motion for summary judgment, the defendant bore the burden of " affirmatively demonstrat[ing] the merit of its claim or defense'" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

Bank of Am., N.A. v Hillside Cycles, Inc., 2011 NY Slip Op 07788 (2nd Dept., 2011)

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Venables v Sagona, 46 AD3d 672, 673; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815; cf. McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, that branch of its motion which was for summary judgment on the complaint, inasmuch as discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d at 815). The Supreme Court erred, however, in denying, as premature, those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, second, third, and twelfth affirmative defenses, and, in effect, that branch of the motion which was for summary judgment dismissing the sixth affirmative defense. The plaintiff established its entitlement to judgment as a matter of law by showing that those defenses were either inapplicable to this breach of contract action or without merit, and that discovery could not result in disclosure of evidence relevant to those affirmative defenses (see Castrol, Inc. v Parm Trading Co. of N.Y.C., 228 AD2d 633, 634). In opposition, the defendant failed to raise a triable issue of fact (see St. Clare Dev. Corp. v Porges, 70 AD3d 925; cf. Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 747, 749).

Robiou v City of New York, 2011 NY Slip Op 08461 (1st Dept., 2009)

The motion court did not improvidently exercise its discretion in denying plaintiff's cross motion to strike defendant's answer (see Talansky v Schulman, 2 AD3d 355, 361-62 [2003]; Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Moreover, we agree with the motion court's conclusion that further discovery could not lead to "facts essential to justify opposition" (CPLR 3212[f]), warranting a denial of defendant's summary judgment motion (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Banque Nationale de Paris v 1567 Broadway

The perils of a reply to a counterclaim

Rossini Excavating Corp. v Shelter Rock Bldrs., LLC, 2011 NY Slip Op 07735 (1st Dept., 2011)

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants' answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment (cf. Oparaji v Duran 18 AD3d 725). In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic.

Admission in deposition transcript

Singh v Actors Equity Holding Corp., 2011 NY Slip Op 07909 (1st Dept., 2011)

Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review (Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter (Morchik v Trinity School, 257 AD2d 534, 536 [1999]).

Late Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Panasia Estate, Inc. v Broche, 2011 NY Slip Op 07922 (1st Dept., 2011)

Although motions for leave to amend may be granted on the eve of trial (see CPLR 3025[c]; Reyes v City of New York, 63 AD3d 615, 616 [2009], lv denied 13 NY3d 710 [2009]), the motion court properly denied plaintiff's motion because defendants would be unduly prejudiced by the proposed amendment, which seeks to add a new theory of liability (see Spence v Bear Stearns & Co., 264 AD2d 601 [1999]). The record reveals that discovery, which had been tailored to the theories of liability set forth in the second amended complaint, was nearly complete and the filing date of the note of issue was imminent (see Chichilnisky v Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388 [2008]). Plaintiff sought this amendment 18 months after the action was commenced, after it had amended its complaint twice, and after it and defendants had submitted motions for summary judgment that Supreme Court had resolved (see Heller v Louis Provenzano, Inc., 303 AD2d 20 [2003]).

Furthermore, the proposed amendment, wherein plaintiff seeks specific performance of an oral modification of the parties' contract, is lacking in merit (see e.g. Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [2009], lv dismissed 12 NY3d 880 [2009]). Plaintiff's conduct, as alleged in the proposed third amended complaint, does not unequivocally refer to the purported oral modification, and thus does not fall within the partial performance exception to General Obligations Law § 5-703(4) (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]).

Weingarten v S & R Medallion Corp., 2011 NY Slip Op 06655 (1st Dept., 2011)

The court providently exercised its discretion in denying plaintiff's motion. The proposed allegation of a "tacit" modification of the parties' written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof.

Application denied

Matter of William Jamal W. Jr. v Marjorie C., 2011 NY Slip Op 07926 (1st Dept., 2011)

No appeal lies from an order entered on default (see CPLR 5511; Matter of Jessenia Shanelle R. [Wanda Y.A.], 68 AD3d 558 [2009]). However, the denial of respondent's counsel's request to adjourn the inquest and dispositional hearing is appealable because that request was "the subject of contest below" (see James v Powell, 19 NY2d 249, 256 n 3 [1967]). We find that the court properly declined to grant the adjournment, having warned respondent on the preceding court date that it would proceed to inquest if she failed to appear (see Matter of Cain Keel L. [Derzerina L.], 78 AD3d 541 [2010], lv dismissed 16 NY3d 818 [2011]).

A duty to read

Vulcan Power Co. v Munson, 2011 NY Slip Op 07917 (1st Dept., 2011)

Defendants-appellants and defendant Munson, their representative, signed the stockholders agreement without reading it. Defendants-appellants, in fact, never requested a copy of the agreement, depending instead on the representations of Munson, who, in turn, depended upon the representations of people whose interests were at odds with his and who he believed to be untrustworthy. As a result, defendants are bound by the terms of the stockholders agreement (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]). Defendants' argument that the holding in Sorenson does not apply to signers of loose signature pages is without merit. A signer's duty to read and understand that which it signed is not "diminished merely because [the signer] was provided with only a signature page" (Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009]; see also Friedman v Fife, 262 AD2d 167, 168 [1999]).

Defendants' failure to read the stockholders agreement also precludes its fraud in the execution defense (see First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397-398 [1961] [finding a non-English speaker negligent for not asking his wife to read a document of obvious legal import, especially where he had done so in the past]; see also Sorenson, 52 AD3d at 266 ["negligent failure to read [an] agreement [precludes the assertion of] justifiable reliance, an essential element of fraud in the execution"]).

Kolmar Ams., Inc. v Bioversal Inc., 2011 NY Slip Op 07916 (1st Dept., 2011)

Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes "paid or incurred by [defendant] directly or indirectly with respect to the product sold," is unpersuasive. "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Excel Graphics Tech. v CFG/AGSCB, 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the "Title and Risk of Loss" provision. Nor should the term "indirectly" be read narrowly as such a reading would render the counterpart term covering taxes paid "directly," meaningless, and run afoul of the "cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless" (Diamond Castle Partners v IAC/Interactive Corp., 82 AD3d 421, 422 [2011]).

Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely "explain" or "supplement" a contractual term within the meaning of UCC 2-202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms (see UCC 2-202; Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 523 [1991]).

The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its "wide discretion" (see Robert Stigwood Org. v Devon Co., 44 NY2d 922, 923-24 [1978]). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.

Fix that appeal with CPLR § 5520 and othe good stuff

CPLR § 5520 Omissions; appeal by improper method

CPLR § 5512 Appealable Paper; entry of order made out of court

Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)

Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).

Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)

Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.

In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.

After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.

The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."

Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.

Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.

Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).

Poundage CPLR § 8012

CPLR § 8012 Mileage fees, poundage fees, additional compensation, and limitation on compensation of sheriffs.

Cabrera v Hirth, 2011 NY Slip Op 06394 (1st Dept., 2011)

A sheriff is entitled to poundage, which is a percentage commission awarded for the collection of money pursuant to a levy or execution of attachment, computed on the monies collected (CPLR 8012[b][1]; see Kurtzman v Bergstol, 62 AD3d757, 757 [2009])^[FN1].

Where the collection process has been commenced but has not been completed, a sheriff may still be entitled to a poundage fee under three circumstances: (1) where "a settlement is made after a levy by virtue of an execution" (CPLR 8012[b][2]); (2) where the "execution is vacated or set aside" (CPLR 8012[b][2]); (3) where there has been an affirmative interference with the collection process, thus preventing a sheriff from actually collecting the assets (Solow Mgt. Corp. v Tanger, 10 NY3d 326, 330-331 [2008]; see also Thornton v Montefiore Hosp., 117 AD2d 552, 553 [1986]).

In this action, where enforcement of the underlying judgment was settled with payment by the debtor defendants' insurance carriers directly to the creditor plaintiff after the Marshal had levied certain accounts, the Marshal is entitled to poundage (see Kurtzman at 758).

Traditionally, the amount of poundage is based on the value of the property levied upon (see Considine v Pichler, 72 AD2d 103, 104 [1979], lv denied 49 NY2d 701 [1980]). However, in this case, the poundage fee cannot be determined by reference to the value of the property levied. The settlement cut off the Marshal's ability to prove the value of the accounts levied upon. The motion court therefore properly exercised its discretion in using the settlement amount as a substitute for the unknown actual value of the levied accounts.^[FN2]

We turn now to the question of which party is responsible for payment of the poundage fee. In a situation such as this, where a settlement is made after a levy, CPLR 8012(b) is silent on this question. The cases which have addressed this issue turn on which of the three circumstances noted above are present in each particular case (see generally Weinstein-Korn-Miller, NY Civ Prac ¶ 8012.05, et seq. [2d ed]).

In the circumstance where a settlement is made after a levy and the order of attachment is vacated (CPLR 8012[b][3]), the courts have interpreted this to cover the situations where "the attachment was invalid at the outset or the action was dismissed in defendant's favor." In those cases, the party responsible for payment of the poundage is usually the plaintiff (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8012:1). Where, as here, the order of attachment is "otherwise discharged" (CPLR 8012 [b][3]), "the party liable for poundage is the one who obtains the discharge – usually the defendant." (id.; see Liquifin Aktiengesellschaft v Brennan, 446 F Supp 914, 922 [SD NY 1978]).

There is a judicially created exception to this latter rule of thumb in cases where a party affirmatively interferes with collection of the money (see Weinstein-Korn-Miller, NY Civ Prac ¶ 8012.04 [2d ed]). In those situations, the party who actively interferes with the collection process may be held responsible for payment of poundage fees.

***

Initially, the fact that plaintiff agreed to take payment directly from the debtor "is an affirmative act interfering with collection by the [Marshal]" (Greenfield v Tripp, 23 Misc 2d 1088, 1089 [1960]). It is uncontroverted that the matter was settled when the defendants' insurers paid the full amount of the judgment to plaintiff's counsel after the Marshal had levied and collected funds from defendants' bank accounts. There is no question that plaintiff's counsel, rather than adhering to the terms of the judgment and waiting the stated 30 days for defendants' insurance carriers to post undertakings, called upon the Marshal's assistance to levy upon defendants' bank accounts or other assets within four days of the entry of the judgment and some five months prior to serving the judgment with notice of entry on defendants. It has long been customary that where a sheriff levies against defendant's property and the matter is thereafter settled, the judgment creditor is liable to the sheriff for the payment of poundage fees as the party who invoked the Sheriff's services (see County of Westchester v Riechers, 6 Misc 3d 584 [2004]; Matter of Associated Food Stores v Farmer's Bazaar of Long Is., 126 Misc 2d 541, 542 [1984]; Matter of Intl. Distrib. Export Co., Inc., 219 F Supp 412 [SD NY 1963]; Seymour Mfg. Co. v Tarnopol, 20 Misc 2d 210 [1959]; Zimmerman v Engel, 114 NYS2d 293 [1952]; Flack v State of New York, 95 N.Y. 461, 466 [1884]; Campbell v Cothran, 56 NY 279 [1874]; Adams v Hopkins, 5 Johns 252 [Sup Ct, NY County 1810]). That is especially appropriate here as plaintiff, as early as November 11, 2004, knew that the entire amount of the judgment was insured, and that defendants' carriers had posted undertakings for the full amount of the judgment. Plaintiff had the opportunity on November 19 to terminate the Marshal's efforts to collect this judgment by declining to sign the 60 day extension as requested by the Marshal. Plaintiff ultimately settled directly with the defendants' insurance carriers rather than follow the court-ordered payment schedule as provided for in the judgment. The record does not show any attempt to advise the Marshal that the carriers posted security or that plaintiff's counsel made his own demand upon those carriers for payment.

As a result, the motion court properly determined that plaintiff and counsel "thwarted" the efforts of the Marshal to collect on this judgment, thus rendering them responsible for payment of the Marshal's poundage fee.