V P Supply Corp. v. Normand 27 A.D.2d 797

Order unanimously reversed, with costs and petition dismissed, without prejudice to the institution of a proceeding under the appropriate section of CPLR, to be conducted in accordance with the Memorandum. Memorandum: The proceeding was started and conducted under CPLR 5225 (subd. [b]). That section contemplates a proceeding to obtain custody of money or other personal property “in which the judgment debtor has an interest * * * where it is shown that the judgment debtor is entitled to the possession of such property ”, The present proceeding was brought to obtain the payment of a debt owed to the judgment debtor. A proceeding of that type is properly under CPLR 5227. Not only was the proceeding brought under the wrong section, but upon its return date the proceedings were completely lacking in appropriate judicial procedure. No *798hearing was had at which testimony was taken, the so-called exhibits were not marked in evidence, and the determination was made in complete disregard of, CPLR 410, and CPLR 5251. These sections mandate a hearing if the order of the court is based upon a determination that the restraining provisions of the order were violated. Furthermore there were issues of fact which should properly have been tried. The court could not make a summary determination upon the pleadings, papers, and admissions because of the issues of fact. (CPLR 409; Judiciary Law, § 773; Matter of McDonnell v. Frawley, 23 A D 2d 729; Matter of First Nat. Bank of Glens Falls v. Reoux, 9 A D 2d 1005.) These issues should have been determined forthwith, but only after a trial of these disputed issues at which the judgment creditor would have the burden of proof. There may have been a right of jury trial. (CPLR 410.) This determination is without prejudice to the institution of a proceeding under the appropriate section, to be conducted in accordance with law and with a view to the protection of all of the rights of the appellant Charles J. Normand and Charles J. Normand Builders, Inc. (Appeal from order of Monroe County Court granting motion for judgment in a special proceeding brought pursuant to CPLR 5225, subd. [b].) Present — Williams, P. J., Bastow, Goldman, Del.Veeehio and Marsh, JJ.