     16-2214-cv
     DeFlora Lake Dev. Assocs. Inc. v. Hyde Park

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   3rd day of May, two thousand seventeen.
17
18   PRESENT: DENNIS JACOBS,
19            ROBERT D. SACK,
20                          Circuit Judges,
21            PAUL A. ENGELMAYER,
22                          District Judge.1
23
24   - - - - - - - - - - - - - - - - - - - -X
25   DEFLORA LAKE DEVELOPMENT ASSOCIATES,
26   INC.,
27            Plaintiff-Appellee,
28
29                -v.-                                           16-2214-cv
30
31   HYDE PARK,
32            Defendant-Appellant,
33
34   LEWIS WROBEL,
35            Defendant.
36
37   - - - - - - - - - - - - - - - - - - - -X
     1
       Paul A. Engelmayer, United States District Judge for the Southern
     District of New York, sitting by designation.

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 1
 2   FOR APPELLEE:                 CHARLES I. EPSTEIN, Hackensack,
 3                                 NJ.
 4
 5   FOR APPELLANT:                LEONARD BENOWICH, Benowich Law,
 6                                 LLP, White Plains, NY.
 7
 8        Appeal from an order of the United States District Court
 9   for the Southern District of New York (Seibel, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
12   DECREED that the order of the district court be AFFIRMED.
13
14        Hyde Park appeals from an order of the United States District
15   Court for the Southern District of New York (Seibel, J.), which
16   substantially granted Hyde Park’s motion to enforce a judgment
17   but denied issuance of the turnover order that Hyde Park sought.
18   We assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.

20        DeFlora Lake Development Associates, Inc. (“DeFlora”) and
21   Hyde Park are parties to a land contract that was entered into
22   in 1980 and amended multiple times over years. Pursuant to that
23   contract, DeFlora continues to manage and develop the property,
24   and the purchase price owed by Hyde Park is amortized from the
25   proceeds of the management fees and sales of individual parcels.
26   A separate summary order is filed today in an appeal from two
27   different orders in this same case. See DeFlora Lake Dev.
28   Assocs., Inc. v. Hyde Park, No. 15-2653-cv (L). That appeal
29   pertains to fee awards that the district court granted in favor
30   of Hyde Park against DeFlora. This appeal pertains to Hyde
31   Park’s effort to enforce the judgments and collect those awards.

32        When DeFlora sought to sell several parcels in 1999, Hyde
33   Park objected to the price. The deadlock was broken by an
34   agreement to allow the sale and to deposit $207,116 of the
35   proceeds in escrow with Lewis Wrobel, who was already serving
36   as the parties’ escrow agent. The parties never executed an
37   escrow agreement for these funds, and no written agreement
38   specifies how or when or if the funds can ever be released.
39   DeFlora sued Hyde Park in 2008, seeking, among other things,
40   a declaration that it was entitled to the funds in escrow. The

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 1   district court dismissed all claims and counterclaims as
 2   time-barred, and that judgment was never appealed. In a 2013
 3   action, DeFlora again attempted to recover the escrow funds.
 4   The district court dismissed all claims and this court affirmed
 5   by summary order. See DeFlora Lake Dev. Assocs., Inc. v. Hyde
 6   Park, 654 F. App’x 9 (2d Cir. 2016) (summary order).

 7        The district court awarded attorneys’ fees to Hyde Park,
 8   pursuant to a provision in the land contract, and Hyde Park moved
 9   under Rule 69 of the Federal Rules of Civil Procedure to execute
10   the judgment. Hyde Park is entitled to enforcement, so the
11   district court substantially granted the motion, but it refused
12   to enter turnover orders under New York Civil Practice Law and
13   Rules (“CPLR”) § 5225, inter alia, directing that DeFlora’s
14   interest in the escrow funds, and its interest in the land
15   contract, be turned over to Hyde Park in satisfaction of the
16   judgment.

17        We review orders enforcing judgment for abuse of discretion.
18   Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d
19   120, 129 (2d Cir. 2009). “A district court has abused its
20   discretion if it based its ruling on an erroneous view of the
21   law or on a clearly erroneous assessment of the evidence, or
22   rendered a decision that cannot be located within the range of
23   permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir.
24   2008) (internal citations, alterations, and quotation marks
25   omitted).

26        CPLR 5225(b) permits a proceeding commenced by a judgment
27   creditor against a person (in this case the escrow agent) in
28   possession of “money or other personal property in which the
29   judgment debtor has an interest.” But as that language
30   suggests, “[f]irst, it must be shown that the judgment debtor
31   ‘has an interest’ in the property the creditor seeks to reach.”
32   Beauvais v. Allegiance Sec., Inc., 942 F.2d 838, 840 (2d Cir.
33   1991). Litigation to determine which (if either) of the parties
34   to this case is entitled to the escrow funds has been dismissed
35   and all of their claims to those funds have been ruled
36   time-barred. Hyde Park attempts distinguish “claims” on the
37   funds (it concedes that DeFlora has none) from an “interest”
38   in them; but the nature of the parties’ respective “interests”
39   in the escrow funds (and the extent to which they have any) is

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 1   the very thing that has been disputed in this duplicative
 2   litigation, and remains unresolved. The district court did not
 3   abuse its discretion by refusing to order those funds turned
 4   over.

 5        Hyde Park’s argument that DeFlora’s “interest” in the land
 6   contract itself should be turned over is also unavailing. CPLR
 7   § 5225 applies only to “money or personal property,” not to real
 8   property. Gryphon Dom. VI, LLC v. APP Int’l Fin. Co., B.V., 41
 9   A.D.3d 25, 35 (1st Dep’t 2007). Hyde Park argues that the
10   intangible rights DeFlora possesses under the contract are
11   personal property, but evidently the only rights Hyde Park seeks
12   are rights to control or liquidate the remaining parcel of land.
13   Those are rights that flow from ownership of the real property,
14   not from DeFlora’s interest in the contract. The disposition
15   of real property is not subject to turnover order under CPLR
16   § 5225.

17        Accordingly, and finding no merit in appellant’s other
18   arguments, we hereby AFFIRM the judgment of the district court.

19                                FOR THE COURT:
20                                CATHERINE O’HAGAN WOLFE, CLERK




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