unenforceable judgement..?

[E.S.]

What is the name of your state? New York.... if a judgment says that the Notice of Entry must be served within 20 days of the judgment, but it was not sent until four months after, is the judgment still enforceable?

 

[adjusterjack]

is the judgment still enforceable?

Yes.

The notice is a formality.

Don't expect the court to set aside the judgment due to its own delay.

 

[E.S.]

Thank you, I should have been more precise... but its not the courts doing, it is the party that failed to serve the Notice of Entry

 

[quincy]

What is the name of your state? New York.... if a judgment says that the Notice of Entry must be served within 20 days of the judgment, but it was not sent until four months after, is the judgment still enforceable?

Until the judgment is entered, it cannot be enforced. Once the judgment is entered, you have 30 days to appeal.

 

[Litigator22]

Until the judgment is entered, it cannot be enforced. Once the judgment is entered, you have 30 days to appeal.

I beg your pardon, but your second statement is inaccurate. The time within which to appeal a judgment as of right does not commence upon the entry of the judgment. Entering the judgment is a function of the clerk. (NY CPLR Sec. 5016.)

The mandatory thirty days doesn't begin to run until "service by a party upon the appellant of a copy of the judgment and written notice of its entry". (NY CPLR Sec. 5513 (a)

 

[quincy]

I beg your pardon, but your second statement is inaccurate. The time within which to appeal a judgment as of right does not commence upon the entry of the judgment. Entering the judgment is a function of the clerk. (NY CPLR Sec. 5016.)

The mandatory thirty days doesn't begin to run until "service by a party upon the appellant of a copy of the judgment and written notice of its entry". (NY CPLR Sec. 5513 (a)

Correct. The "loser" (using the court's word) must be served with notice of the entry of judgment. Following is a link from the New York courts. See "After Entry of Judgment."

http://nycourts.gov/courthelp/goingtocourt/judgments.shtml

 

[E.S.]

Perhaps we’re getting a bit off point here.. The issue is, if the prevailing party fails to serve the notice of entry (obviously with the judgment) within the 20 days the judgment states, but they wait four months.. is the judgment enforceable (void)..?

 

[adjusterjack]

Exactly what does the judgment "state"?

Quote it word for word.

 

[E.S.]

adjusterjack, thank you... but are you an attorney..?

"ORDERED, that a copy of this Judgment with Notice of Entry shall be served upon the designated Referee, the owner of the equity redemption of this Order, any tenants named in this action and any other party entitled to notice within twenty (20) days of and no less than thirty days prior to sale; and it is further
ORDERED, THAT THE Plaintiff shall serve a copy of the Notice of Sale upon the Ex-parte office at least ten (10) days prior to the scheduled sale.

ENTER:"

none of that was complied with, thankfully the published scheduled sale was noticed and a stay granted in the Appellate Division; two days following the hearing on the OTSC/Stay a flurry of notices arrived; none of the notice provisions having complied with as stated in the order... is the judgment enforceable; erroneous recollections from many months ago were that it stated the Notice of Entry within 20 days of the order, but the key word is "of", meaning the scheduled sale, nevertheless, the provisions were not complied with until AFTER the OTSC hearing; if my criminal law knowledge serves me correctly, an attempted no-notice sale is attempted grand larceny, a felony.

 

[quincy]

Is the property scheduled for sale? Has the property sold?

 

[E.S.]

quincy, negatory, the case is going to the NY Court of Appeals with an OSC on what I'm hoping would be a permanent injunction; the scope of the Appellate Division apparently is only a stay (bypassing the issue that the no-notice sale was criminal, and as I am exploring here, the enforceability of the judgment) pending the outcome of the appeal regarding dismissal (lack of standing, failure to exhaust remedies, conflict of interest, failure to initially caption the appropriate bank, several misconduct and criminal issues which should have precluded relief)

 

[quincy]

It appears from what you posted that the notice needs to be served prior to sale and scheduled sale. I am not understanding what you see as criminal.

I do not see the judgment as being void.

 

[E.S.]

quincy, thank you for your reply, the attempted no-notice sale is attempted grand larceny, and if purposefully failing to comply with notice requirements has no consequences... why doesn't everyone just do as they please...

 

[quincy]

quincy, thank you for your reply, the attempted no-notice sale is attempted grand larceny, and if purposefully failing to comply with notice requirements has no consequences... why doesn't everyone just do as they please...

How has the sale been attempted?

Everyone does seem to do pretty much as they please.

 

[E.S.]

quency, also, if my understanding is correct, if a party fails to comply with such a notice requirement, they must, upon good cause, re-motion for the relief.. so there is a remedy that they failed to avail themselves of.. failure to exhaust remedies...