Freedom Discount Corp. v. McMahon 38 A.D.2d 947

In an action for damages, plaintiff appeals from an order of the Supreme Court, Richmond County, dated October 5, 1971, which denied its motion for summary judgment. Order modified, on the law, by adding thereto a provision granting summary judgment to defendant dismissing the complaint. As so modified, order affirmed, without costs. Plaintiff seeks to recover damages from defendant, the Sheriff of Westchester County, because of defendant’s refusal to make a levy based upon the income execution on a money judgment against a third party as tendered by the plaintiff. The refusal was based on plaintiff’s failure to comply with CPLR 5231 (subd. [a]), which prescribes the form for such an execution. Plaintiff moved for summary judgment and defendant opposed, without making a cross motion, with a conclusory statement that triable issues of fact existed. The Special Term denied the motion on the ground that plaintiff had failed to comply with CPLR 5231 (subd. [a]), the applicable statute. On the argument of this appeal, the parties conceded that there were no issues of fact, We agree with the Special Term’s determination that the *948execution improperly failed to comply with CPLR 5231 (subd. [a]); hence, defendant was justified in refusing to make a levy based on this execution and there is no merit in plaintiff’s action. Consequently, defendant is entitled to summary judgment dismissing the complaint and, in light of the concession that no fact issue exists on this record, he can and should be granted that relief despite his failure to request it (CPLR 3212, subd. [b]; Wiseman v. Knaus, 24 A D 2d 869). Hopkins, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.