GONZALEZ v. CHAMPION (2024)

The following papers numbered 1 to 4 were read on these motions:

Paper Number

Order to Show Cause, Affidavit, Affirmations and Exhibits 1

Notice of Cross-Motion, Affirmation and Exhibit 2

Affirmation and Exhibits in Opposition 3

Affirmation in Opposition 4

There are two motions before the Court. The first is defendant's Order to Show Cause that seeks (1) to renew and reargue the Court's October 21, 2024 Decision and Order (the “October Decision”) which denied his motion to stay a Sheriff's sale of a Yonkers property which he claims belongs solely to his ex-wife (the “premises”); (2) to stay “the Execution to the Sheriff of the County of Westchester, dated July 9, 2024, for the satisfaction of a judgment entered on September 26, 2019 in favor of ANGELITA GONZALEZ and against DERRICK R. CHAMPION in the sum of $160,359.03;” (3) to stay the Sheriff from selling the premises; (4) a temporary restraining order and preliminary injunction to stop the Sheriff from selling the premises. The cross-motion, filed by plaintiff, seeks that “substituted service be made on Defendant/Judgment Debtor pursuant to CPLR sections 5236(c) [sic], 308(1), 308 (2), 308 (3), 308 (4) and 308 (5) of Sheriff Sale Documents as required by the Westchester County Attorney.”

In the October Decision, the Court explained that

Although they were divorced in 2017, before plaintiff obtained her judgment against defendant in 2019, defendant and his ex-wife did not take any steps to transfer the Yonkers property to his ex-wife's sole name until defendant had already commenced his efforts to set aside the judgment in this action. A review of the exhibits submitted on this motion shows that the “PARTIAL LIQUIDATION OF COMMUNITY PROPERTY AND TRANSFER OF PARTICIPATION” was not dated until July 18, 2024, and the Quitclaim Deed was not executed until August 6, 2024.

The Court thereafter denied defendant's request for a stay (again) because defendant had not complied with the conditions set forth clearly by the Court in the Order to Show Cause that resulted in the October Decision. Now, on this motion, defendant explains that he attempted to comply with the conditions, and did comply with most of them (albeit late). The Court notes that defendant did not upload the proof of compliance to NYSCEF as he had been directed until more than a month later.

Notwithstanding these errors, the Court will address the merits of the motion rather than dwell on the procedural issues. As set forth above, defendant and his former wife were divorced before plaintiff obtained her judgment against defendant. Yet for many years, defendant was content to allow the premises to remain in joint name. It was only once plaintiff began judgment enforcement proceedings in this action that defendant and his former wife transferred the premises to her sole name.

Indeed, it was not until the Court had struck the temporary relief that defendant sought, in his first of several Orders to Show Cause to stop the Sheriff from proceeding to sell the premises, that they effectuated the transfer of the premises. It is deeply concerning to the Court that defendant and his former wife did not bother to transfer the premises back at the time of their divorce, but did so only after plaintiff attempted to satisfy her judgment by seizing the premises. See Debtor and Creditor Law § 273.

Moreover, if the transfer from joint name were for legitimate reasons, then the only person who would have standing to protect the premises is the actual owner, defendant's former wife. (As she once appeared telephonically at a conference in this matter, she is well aware of the status of the litigation.) Put simply, if the transfer were done intentionally, to thwart plaintiff, then the Court should not stay plaintiff's efforts to collect on her judgment against the premises. And if the premises are validly in defendant's former wife's name, then she is the only one who has standing to protest. This is a point that plaintiff has raised before, yet defendant has taken no steps to add her to this litigation. Either way, the Court finds no legal basis to grant any aspect of defendant's motion. Defendant's motion is thus denied in its entirety.

With respect to plaintiff's motion for alternate service, the Court grants it to the extent of allowing plaintiff (and/or the Sheriff's Office) to serve defendant with all documents concerning the Sheriff's sale of the premises by serving his current counsel by NYSCEF and/or overnight mail. A copy of any such documents shall also be sent to defendant's former wife by email, fax or overnight mail at her last known address in Puerto Rico.

The foregoing constitutes the decision and order of the Court.

Linda S. Jamieson, J.