Laches and Missing Proof Bar Post‑Satisfaction Attacks on Article 52 Enforcement; Renewal Requires Strict Justification

Introduction

This commentary examines the Appellate Division, Second Department’s decision in GTR Source, LLC v. Zomongo.TV USA, Inc., 2025 NY Slip Op 05223 (Oct. 1, 2025). The case arises out of a 2018 judgment by confession obtained by GTR Source, LLC against Zomongo.TV USA, Inc. and related defendants, based on an alleged default under a merchant agreement. The judgment—totaling $1,297,132.60—was collected in full via an execution and levy against a bank account at BMO Harris Bank, N.A. (BMO), and a satisfaction of judgment was filed on June 15, 2018.

Approximately three years later, defendants moved to vacate the execution and levy and sought restitution, arguing that the levy was improperly served in violation of CPLR 5232(a) and beyond a New York City marshal’s territorial authority under New York City Civil Court Act § 1609. The Supreme Court (Nassau County) denied the motion, noting defendants’ failure to provide the execution/levy or proof of service details, and later denied defendants’ motion for leave to renew and, upon reargument, adhered to its original decision. The defendants appealed. The Appellate Division affirmed, addressing both renewal standards and equitable limits under CPLR article 52, including the timeliness of CPLR 5240 relief and the application of laches.

Summary of the Opinion

• The Second Department affirmed the denial of leave to renew defendants’ motion to vacate the execution and levy and seek restitution, holding that defendants failed to offer a reasonable justification for not supplying the missing documents and proof (CPLR 2221[e]).
• On reargument, the court adhered to denial of the original motion because defendants did not meet their prima facie burden to obtain relief under CPLR article 52: they failed to submit competent evidence establishing how, where, and on whom the execution and levy were served, and where the bank account was located.
• Even apart from the evidentiary deficiencies, defendants’ CPLR 5240 request was untimely in equity. Although CPLR 5240 has no fixed limitations period, relief must be pursued within a reasonable time; here, the three-year delay after satisfaction, coupled with prejudice and changed circumstances for the judgment creditor, warranted application of laches, barring the requested relief.
• While reiterating the Bray v Cox rule that a prior appeal dismissed for lack of prosecution can bar relitigation of issues, the court exercised discretion to reach the issues because the subsequent appeal from a superseding order was taken before the prior appeal was deemed dismissed.

Detailed Analysis

1) Precedents and Authorities Cited

• CPLR 2221(e) (Renewal): The court relies on the statutory requirements that a renewal motion must be based on new facts that would change the prior determination and must include a reasonable justification for not presenting those facts earlier. The decision cites:
  • 1KB & MS, LLC v Happy Living Constr., LLC, 228 AD3d 604, 606
  • Caracciolo v SHS Ralph, LLC, 226 AD3d 865, 866
  • Neeman v Smith, 227 AD3d 818, 820 (no discretion to grant renewal absent reasonable justification)
  • Matter of Polak v MTA Long Is. R.R., 230 AD3d 500, 503 (renewal is not a “second chance”)
  • Seror v Clearview Operating Co., LLC, 235 AD3d 1023, 1025
• CPLR article 52 Enforcement Framework:
  • Cruz v TD Bank, N.A., 22 NY3d 61, 66 (overview of article 52 procedures; note on “reasonable time” for CPLR 5240 relief at 76 n.4)
  • Flagstar Bank, FSB v State of New York, 114 AD3d 138, 145 (use of article 52 devices)
  • CPLR 5232(a): service of an execution and levy on a garnishee must be “in the same manner as a summons” (see Matter of Kitson & Kitson v City of Yonkers, 40 AD3d 758, 760)
  • New York City Civil Court Act § 1609: limits a New York City marshal’s authority to serve an execution and levy to entities within the City
  • CPLR 5240: court’s broad equitable power to regulate enforcement “at any time”
  • Plymouth Venture Partners, II, L.P. v GTR Source, LLC, 37 NY3d 591, 600 (scope of CPLR 5240 discretion; emphasis on preventing unreasonable prejudice)
  • Guardian Loan Co. v Early, 47 NY2d 515, 519 (foundational articulation of CPLR 5240’s breadth)
  • Distressed Holdings, LLC v Ehrler, 113 AD3d 111, 120 (application of CPLR 5240 to regulate enforcement)
• Appellate Practice — “Bray v Cox” doctrine:
  • Bray v Cox, 38 NY2d 350, 353 (general rule: issues raised or that could have been raised on a prior appeal dismissed for lack of prosecution are not reconsidered)
  • PennyMac Corp. v Nicolosi, 185 AD3d 711, 712 (same)
  • Thorpe v One Page Park, LLC, 208 AD3d 818, 820 (discretion exercised to reach issues on appeal from a superseding order)

2) The Court’s Legal Reasoning

The Second Department’s reasoning proceeds along three principal tracks: (a) the stringent standard for renewal; (b) the evidentiary burden to vacate an execution/levy and obtain restitution under article 52 and CPLR 5240; and (c) timeliness and the bar of laches in equitable enforcement proceedings.

• Renewal (CPLR 2221[e]):
  • Defendants argued they could not obtain the execution and levy at the time of the original motion. Renewal requires both new facts that would change the outcome and a reasonable justification for not offering them originally.
  • The court found the justification inadequate. The missing core documents (the execution/levy and proof of service) are the very evidence necessary to substantiate the alleged defects; without a concrete, reasonable account of diligent efforts and unavoidable inability to obtain them, renewal is improper.
  • Because the statute deprives the court of discretion to grant renewal absent reasonable justification, denial was mandatory (Neeman v Smith).
• Prima facie burden under article 52 and CPLR 5240:
  • To vacate an execution and levy—and to compel restitution of funds collected—defendants had to establish, through competent evidence, the factual circumstances of service (on whom, where, and how) and the location of the relevant bank account.
  • These facts are critical because CPLR 5232(a) demands service “in the same manner as a summons,” and because a New York City marshal’s authority is territorially confined (NYC CCA § 1609). Service beyond the marshal’s jurisdiction or not in accordance with CPLR 5232(a) could render the levy voidable.
  • The court declined to reach those legal questions because defendants’ proof failed at the threshold—they did not supply the execution/levy, proof of service, or admissible evidence regarding the bank account’s location. Absent this, they failed to make a prima facie showing for vacatur or restitution.
• Equitable timeliness and laches (CPLR 5240):
  • Although CPLR 5240 contains no fixed limitations period, it is an equitable device. Equitable relief must be sought within a reasonable time after the injury occurs (Cruz v TD Bank, 22 NY3d at 76 n.4; Plymouth Venture Partners, 37 NY3d 591).
  • Defendants waited approximately three years after satisfaction of judgment to seek relief. The court found no explanation for the delay, and that the judgment creditor’s position had changed in the interim.
  • Under these circumstances, laches—an equitable bar triggered by undue delay resulting in prejudice—applied. The considerable delay and resulting change of position/disadvantage to the creditor precluded CPLR 5240 relief.
• Appellate reach despite a prior appeal dismissed for lack of prosecution:
  • While the Bray v Cox rule generally precludes reconsideration of issues in a subsequent appeal, the Second Department exercised its inherent discretion to address the issues here because the later appeal was from a superseding order and was taken before the earlier appeal was deemed dismissed (Thorpe v One Page Park; PennyMac v Nicolosi).

3) Impact and Significance

• Renewal motions will face strict scrutiny. Parties cannot withhold essential proof on an initial motion and expect a “do-over.” Absent a detailed, credible reason for nonproduction, renewal will fail.
• Article 52 challenges require a complete evidentiary record. When attacking an execution/levy, litigants must present the execution itself, affidavits of service (identifying who was served, where, and how), and evidence of the account’s location—particularly where a marshal’s territorial authority or bank branch rules could be dispositive.
• CPLR 5240 is broad but not boundless. Even robust equitable powers cannot be invoked after years of inaction. Post-satisfaction attempts to unwind collection will face laches unless pursued with diligence and supported by compelling equitable considerations.
• Practical consequences for enforcement practice:
  • Judgment creditors: The decision promotes certainty and repose. Once a levy yields payment and the judgment is satisfied, the risk of claw-back diminishes sharply over time, especially where the debtor was on notice but did not act promptly.
  • Judgment debtors: Time is of the essence. If a debtor believes a levy is void or irregular, prompt action is imperative. Delay can be fatal even if a procedural defect might otherwise exist.
  • Marshal/Sheriff selection and service planning: Creditors should scrupulously match the enforcement officer’s territorial authority to the target garnishee and ensure service accords with CPLR 5232(a). Even if this case ultimately turned on proof and laches, it underscores the need for clean, defensible service.
• Appellate practice: Litigants should not assume that a Bray v Cox dismissal forever forecloses review. Where a superseding order is appealed before the earlier appeal is deemed dismissed, the Appellate Division may exercise discretion to reach the merits.

Complex Concepts Simplified

• Judgment by confession (CPLR 3218): A debtor signs a sworn statement confessing liability in a specific sum, allowing the creditor to enter judgment without litigation. New York has restricted certain confessions in recent years, but this case involves a 2018 confession, predating reforms.
• Execution and levy: After a money judgment, an “execution” is issued to an enforcement officer (often a sheriff outside NYC, or a marshal within NYC). A “levy” is the act of seizing the debtor’s property in the hands of a third party (e.g., a bank) to satisfy the judgment.
• Garnishee: A third party that holds property of the judgment debtor (such as a bank holding a deposit account). Service on a garnishee is how the creditor reaches the debtor’s property.
• CPLR 5232(a): Requires that service of an execution on a garnishee be made “in the same manner as a summons,” which generally means personal service methods under CPLR 308. The details of where and on whom service is made can determine whether the levy is effective.
• NYC marshal’s territorial authority (NYC CCA § 1609): A New York City marshal can serve executions only upon entities within the City. If the marshal serves outside that territory, service may be challenged. Proof of the garnishee’s location and the place of service can therefore be outcome-determinative.
• CPLR 5240: Grants courts broad discretion to regulate and control enforcement of money judgments, including denying or conditioning enforcement steps to prevent undue prejudice. It is equitable in nature and must be invoked within a reasonable time.
• Laches: An equitable defense barring relief after unreasonable delay that prejudices the opposing party. It does not require a fixed time period but looks to fairness: delay plus prejudice/change of position can foreclose equitable remedies.
• Reargument vs. renewal (CPLR 2221):
  • Reargument: Asks the court to revisit a decision based on a claim the court misapprehended facts or law. No new facts are considered.
  • Renewal: Requires new facts that would change the outcome and a reasonable explanation for not presenting them earlier.
• Bray v Cox doctrine: Generally, if an earlier appeal is dismissed for lack of prosecution, a party cannot re-raise the same issues in a later appeal. However, appellate courts retain discretion to reach issues in the interest of justice, especially where a later appeal involves a superseding order and was taken before the earlier dismissal became effective.

Key Takeaways

• Renewal is not a mulligan. Without a persuasive, documented reason for previously missing core evidence, CPLR 2221(e) renewal will be denied.
• Build the record the first time. To attack a levy, submit the execution, affidavit(s) of service, and admissible proof of the garnishee’s and account’s location.
• Equity favors the diligent. CPLR 5240 relief must be sought promptly; laches can bar relief even where defects might otherwise exist.
• Marshal authority matters, but proof comes first. Allegations that a NYC marshal served beyond territorial bounds require factual substantiation.
• Appellate safety valve exists but is narrow. Bray v Cox is not an absolute bar; courts may exercise discretion when a superseding order is timely appealed.

Conclusion

GTR Source, LLC v. Zomongo.TV USA, Inc. reinforces two enduring themes in New York’s judgment enforcement jurisprudence. First, renewal demands strict compliance: litigants must present new, outcome-altering facts together with a robust justification for prior omission. Second, CPLR 5240’s broad equity is bounded by timeliness and fairness; laches can bar post-satisfaction attempts to unravel enforcement, especially where the movant delayed without explanation and the creditor’s position changed. The decision also underscores the practical necessity of assembling a complete evidentiary record—execution, service details, and account location—before seeking to vacate a levy. For practitioners on both sides of the “v.”, the message is clear: act promptly, document thoroughly, and match enforcement methods to statutory and territorial constraints from the outset.