Plaintiff, the Lawyers' Fund for Client Protection of the State of New York, brings this CPLR 3213 motion for summary judgment in lieu of complaint against defendant, Robert Cassandro, seeking under CPLR 5014 to renew judgments that it holds against defendant. Resolving this motion requires the court to consider an issue of first impression about the availability of CPLR 5014 to obtain renewal of federal-court judgments. Plaintiff's motion is denied; and plaintiff's claims against defendant are dismissed in part.

Defendant is a disbarred former attorney. The judgments underlying this motion-action arise from fraud defendant committed against some of his clients while in practice. Two of those clients were Charles D'Aleo Sr. and Charles D'Aleo Jr.

In 2010, defendant filed a voluntary bankruptcy petition in the United States Bankruptcy Court for the Eastern District of New York. (NYSCEF No. 18 at 2.) In 2011, D'Aleo Sr. initiated an adversary proceeding against defendant to deem nondischargeable a debt alleged to be owed to him by defendant. (Id.)

In 2012, defendant was convicted of defrauding his clients, including both D'Aleo Sr. and D'Aleo Jr. (NYSCEF No. 4 at 1; NYSCEF No. 18 at 2.) In July 2014, Supreme Court, New York County, issued a restitution order, requiring defendant to pay $545,000 in restitution to D'Aleo Sr. and $60,000 in restitution to D'Aleo Jr. (NYSCEF No. 4 at 1.) The order directed the filing of the restitution order as a judgment pursuant to the Criminal Procedure Law, and provided that the judgment would be enforceable as a civil judgment of restitution. (Id. at 2.)

In April 2015, D'Aleo Sr. and defendant stipulated in Bankruptcy Court to resolve the adversary proceeding by a "consensual non-dischargeable judgment" for $450,000. (NYSCEF No. 18 at ¶ 2.) The stipulation provides that although the bankruptcy judgment "is separate and distinct from the Restitution Order" entered by Supreme Court, payments made under the restitution order will offset the amount due under the bankruptcy judgment. (Id. at ¶ 5.) The Bankruptcy Court so-ordered the stipulation. (NYSCEF No. 19.)

In July 2018, D'Aleo Sr. partially assigned his interest in the bankruptcy judgment (to the extent of $400,000) to plaintiff. (NYSCEF No. 7 at 1.) In March 2019, D'Aleo Jr. executed an agreement assigning his interest in a judgment entered on the restitution order (to the extent of $60,000) to plaintiff. (NYSCEF No. 8 at 1.) Plaintiff, as assignee of the $400,000 and the $60,000 judgments, now seeks under CPLR 5014 to renew those judgments.

A court may enter a renewal judgment "upon a money judgment entered in a court of the state." (CPLR 5014 [emphasis added].) To obtain a renewal judgment, the movant must show "(1) the existence of the underlying judgment; (2) that the defendant was a judgment debtor; (3) that the underlying judgment was docketed at least nine years prior to the commencement of this action; and (4) that the underlying judgment remained partially or completely unsatisfied."^[FN1] (Lull v Van Tassell, 171 AD3d 1155, 1156 [2d Dept 2019].)

With respect to the $400,000 assignment, defendant argues that plaintiff has no standing to renew the underlying Bankruptcy Court judgment. This court is not persuaded that plaintiff lacks standing, given that it is undisputedly the assignee of D'Aleo Sr. (See Cadle Co. v Biberaj, 307 AD2d 889, 889-890 [1st Dept 2003].) Nonetheless, plaintiff is not entitled to renewal under CPLR 5014 of the bankruptcy judgment.

As noted above, CPLR 5014 provides for renewal of judgments entered in a "court of the state." The bankruptcy judgment, on the other hand, was entered in a federal court, albeit one [*2]located within New York's territorial bounds. (See NYSCEF No. 6.) The question, then, is whether this federal judgment may be renewed pursuant to CPLR 5014. This court is not aware of any prior precedent addressing this issue.^[FN2] Considering the issue as a matter of first impression, the court concludes that a judgment entered by a federal court located within New York may not be renewed under CPLR 5014.

The term "a court of the state" in CPLR 5014 appears on its face to refer only to New York State courts—not also to federal courts located within New York's territorial bounds but are not courts of New York. This common-sense reading of the term is confirmed by its usage in other CPLR provisions. CPLR 101, for example, provides that the "civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state." And CPLR 6501 expressly distinguishes between "a court of the state" and a court "of the United States."^[FN3] (CPLR 6501 [a] ["A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, incumbrance of, or the possession, use or enjoyment of, real property. . . ."]; cf. CPLR 3217 [c] [providing that a notice of discontinuance "operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States"] [emphasis added].) This court sees no viable reading of CPLR 5014 that would permit plaintiff to obtain renewal of the Bankruptcy Court judgment.

Plaintiff contends that this distinction is immaterial because both the restitution order and Bankruptcy Court judgment cover the same debt. (See NYSCEF No. 15 at ¶ 9 [reply memorandum]; NYSCEF No. 18 at ¶ 5 [stipulation of settlement].) Plaintiff does not, however, bring this action to collect on a debt, but instead to renew a judgment. The bankruptcy stipulation provides that the judgment to be entered on that stipulation is "separate and distinct from the Restitution Order." (NYSCEF No. 18 at ¶ 5.) And D'Aleo Sr. assigned plaintiff a portion of his interest in the bankruptcy court judgment—not his interest in the restitution order. (See NYSCEF No. 7 at 1.)

In short, regardless of the proof submitted on this motion, plaintiff's claim for a $400,000 renewal judgment based on the bankruptcy judgment must be denied—and the claim dismissed—because that judgment is not entitled to renewal under CPLR 5014.

Plaintiff's request for summary judgment on its claim for a $60,000 renewal judgment must be denied as well, for a different reason: Plaintiff has not provided proof in admissible form of the initial judgment that it seeks to renew.

In moving for a renewal judgment, plaintiff provides a party affidavit supported by various documents. The affidavit is not made on personal knowledge. (See NYSCEF No. 3 at ¶ 1.) Thus, the question is whether the documents attached to that affidavit provide the evidence necessary to sustain plaintiff's prima facie case. (See Wells Fargo Bank, NA v Oziel, 196 AD3d 618, 621 [2d Dept 2021] [explaining that when an affidavit serves as the basis for the introduction of documents, it is the "business record itself, not the foundational affidavit, that serves as proof of the matter asserted"] [internal quotation marks omitted].) They do not.

Plaintiff provides a copy of the underlying restitution order. (See NYSCEF No. 6.) That order is not itself a judgment; it merely directs that judgment be entered. (See id. at 2.) Nor does plaintiff submit a copy of the judgment itself. (Cf. Lawyers' Fund for Client Protection of the State of NY v Haber, 2023 WL 2666907, at *1 [Sup Ct, Kings County Mar. 23, 2023] [granting CPLR 3213 motion seeking renewal judgment based on plaintiff's submission of the judgment entered on the underlying criminal restitution order].) Instead, plaintiff relies on what the affidavit describes as a "copy of the New York Judgment Docket and Lien Records confirming the filing of the Restitution Order as a judgment." (NYSCEF No. 3 at ¶ 6.) That document, though, is not an entry in an official court docket book, or the like, but instead a copy of a Westlaw download from what appears to be a "New York Judgment Docket And Lien Records" database. Plaintiff's party affidavit does not describe the nature of this database, the sources of the information contained in the database, nor plaintiff's basis for certainty that the information is authentic and accurate. Even assuming that the Westlaw document itself is not hearsay because it has "independent legal significance" (Wesco Ins. Co. v Rutgers Cas. Ins. Co., 202 AD3d 460, 460 [1st Dept 2022]), that document, without more, cannot establish the existence of the underlying judgment. And plaintiff does not provide more.^[FN4]

Plaintiff has not made out its prima facie case with respect to the branch of its motion seeking a $60,000 renewal judgment. This branch of the motion is therefore denied even without [*3]taking into account defendant's opposition papers.^[FN5]

Upon denial of a CPLR 3213 motion, the motion court typically converts the motion-action into an ordinary plenary action (deeming the moving and answering papers the complaint and answer, respectively); but it has the discretion, under the statute, to direct another appropriate disposition.

Here, as discussed in Point I, converting this motion-action into a plenary action with respect to plaintiff's claim for a $400,000 renewal judgment based on the bankruptcy judgment would be inappropriate, because that claim fails as a matter of law. Instead, dismissal of the bankruptcy-judgment-related claim is required—in effect, granting summary judgment to the nonmoving party (defendant).

As for the claim for a $60,000 renewal judgment based on the restitution-related judgment, plaintiff failed here to provide the documents needed to support that claim—i.e., the underlying judgment itself. But plaintiff may yet be able to do so in the future. Dismissal of that claim would thus be inappropriate. Treating plaintiff's motion papers as a complaint and supporting exhibits on the $60,000 renewal-judgment claim is admittedly somewhat anomalous, because the complaint as currently framed does not make out a cause of action absent proof or the underlying judgment. But this anomaly could yet be resolved by a motion for leave to amend the pleadings to supply that proof (should it be available and support plaintiff's claim).

Accordingly, it is

ORDERED that the branch of plaintiff's CPLR 3213 motion seeking to renew D'Aleo Sr.'s interest (to the extent of $400,000) in the bankruptcy judgment dated June 16, 2015, is denied; and plaintiff's CPLR 5014 claim based on the bankruptcy judgment is dismissed; and it is further

ORDERED that the branch of plaintiff's CPLR 3213 motion seeking to renew D'Aleo Jr.'s interest (to the extent of $60,000) in any judgment entered on the restitution order dated July 29, 2014, is denied; and it is further

ORDERED that plaintiff's CPLR 5014 claim based on any judgment entered on the restitution order is severed and shall continue; and it is further

ORDERED that this motion-action is converted into a plenary action, limited to plaintiff's CPLR 5014 claim for a $60,000 renewal judgment; plaintiff's motion papers are deemed a complaint with supporting exhibits; and defendant's opposition papers are deemed an answer with supporting exhibits; and it is further

ORDERED that the parties shall appear before this court for a telephonic preliminary conference on December 5, 2024; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant; and shall serve notice of entry on the office of the County Clerk (by the means set [*4]forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.