Levy Does Not Expire After 90 Days if a Special Proceeding is Commenced Before the 90 Days Has Run

On September 21, 2018, Justice Masley of the New York County Commercial Division issued a decision in Medallion Bank v. TLG Hacking Corp., 2018 NY Slip Op. 32397(U), holding that a levy does not expire if a special proceeding is commenced before the levy expires, explaining:

Garber and TLG argue that the motion must be denied since a levy expires and becomes void after 90 days unless an order of extension has been obtained before that time. They rely on New York State Commr. of Taxation and Fin. v Bank of New York, 275 AD2d 287(1st Dept 2000) in support of their contention. However, New York State Commr. of Taxation and Fin. v Bank of New York, does not hold that the extension must actually be obtained before the 90-day expiration period. In fact, the Appellate Division, First Department, holds that a levy becomes void 90 days after service unless either (1) a special proceeding specified by the particular provision has been commenced or (2) an order of extension has been obtained. Thus, a levy is not void if a special proceeding is commenced prior to the 90-day expiration.

Although Medallion moved pursuant to CPLR 5232(a), instead of commencing a special proceeding pursuant to CPLR 5225 or 5227, all three of these statutes provide similar means to enforce money judgments, and it is reasonable to permit an extension where a motion for such relief was brought in a timely manner instead of a special proceeding.

(Internal quotations and citations omitted).

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