Estate of Randolfi v. Ultissima Beauty Institute, Ltd.

In an action for payment of money upon an instrument, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme [800] Court, Suffolk County (Underwood, J.), entered June 15, 1990, as directed it to pay poundage fees to the Sheriff of Nassau County. Ordered that the order is affirmed insofar as appealed from, with costs. After the plaintiff obtained a default judgment against the defendant, the Sheriff of Nassau County levied an execution upon property in which the defendant had an interest. This property had been specifically designated by the plaintiff in the execution prepared by its attorney. Subsequently, the default judgment was vacated on the ground that personal jurisdiction had never been obtained over the defendant. Upon the cross motion of the Sheriff of Nassau County, the plaintiff was directed to pay poundage fees. Under the circumstances of this case, this was correct (CPLR 8012 [b] [2]; see, Viggiano v Viggiano, 136 AD2d 630; West Side Natl. Bank v Warsaw Discount Bank, 204 App Div 4; Matter of Associated Food Stores v Farmers Bazaar, 126 Misc 2d 541). Eiber, J. P., O’Brien, Copertino and Pizzuto, JJ., concur.