§ 5233.Sale of personal property.

Subd (a) of this section is based upon CPA §§ 660, 663, 686, 688 and 706. The designation in 660 of particular hours within which a sale may be held has been omitted in favor of a standard adopted from § 706—which is there applicable to the type of parcels and lots in which the property should be sold—those that “in his judgment will bring the highest price.” The last sentence of this subd is virtually identical to a provision of former § 706; the latter was subject to an exception, however, “where the officer is expressly authorized by this article to sell property not in his possession.” The only applicable authorization in the article is the provision in § 688 that the sale of pledged property shall be made “without interfering with the lawful possession of the pledgee.” There are other situations where it may not be feasible to display the property or have it present during the sale. This subdivision permits the court to relieve the sheriff of his obligation to have the property present at the sale; it would also allow the court to order a pledgee or lessee in possession to permit the sheriff to hold a sale on the premises, upon appropriate terms and conditions. The exception for “legal tender of the United States” is based upon former § 686. See notes to CPLR § 5232(b). The last phrase of the first sentence of this subdivision is based upon former § 663. A similar provision is included in § 5236(a) with respect to real property. CPA § 695 providing that the sheriff shall exhibit property levied upon to any creditor of the judgment debtor, has been deleted as unnecessary.

The first sentence of subd (b) of this section is based upon the first sentence of CPA § 707 with no change in substance intended. The second sentence of this subdivision is based upon CPA § 662. A similar provision is included in § 5236(c) with respect to real property. Where personal property is unique, it is not uncommon for the judgment creditor to seek to increase the price it may bring upon the sale by giving wider publicity than that provided by the public notice required by this subdivision. Personal contact and newspaper advertising–especially in trade journals—are frequently used. Indeed, in New York city, the sheriff is required to advertise every sale of personal property in a local newspaper. NYC Admin Code § 1032-9.0(b). If the personal property is of such a nature that negotiation rather than public auction would be the best way to sell it, the judgment creditor may move for the appointment of a receiver. See notes to § 5228(a).

Subd (c) of this section is based upon the last sentence of CPA § 707. The former section, however, was restricted to perishable property and disposition was limited to immediate sale. This subdivision affords the court discretion to provide for any appropriate disposition of any property, as particular circumstances require. While § 707 specified that the motion be made by the sheriff, other persons may have an interest in preserving the value of perishable property. Therefore, this subdivision is not restricted to any particular mode of application.

1979 Recommendations of the Law Revision Commission:

The court, in People v. LoJi Sales, Inc., (93 Misc 2d 1012, 1014) confronted with the question of what to do with material seized by the Sheriff pursuant to judgment execution which could not be legally sold, stated: “There appears to be no statutory procedure nor court precedent to guide this court in making a determination in this matter, and it might well prompt legislative clarification.” In that case defendant was convicted on two counts of obscenity and fined $5,000 on each count. The fines were not paid. Pursuant to section 420.20, Criminal Procedure Law, which provides that fines may be collected in the same manner as a judgment in a civil action, executions were given to the sheriff under section 5230, Civil Practice Law and Rules (CPLR). Among defendants assets were quantities of material considered by the sheriff to be obscene. These were submitted to the court and there found obscene under the Penal Law definition. The question arose as to what disposition should be made of the materials.

The court found that no statutory provision answered the question. Section 6330, CPLR, permits destruction where the material is seized pursuant to a civil injunction, which is not this case. Section 410.00, Penal Law, provides for seizure and forfeiture of equipment used in producing obscene material, but that is not this case either. The court ordered destruction of the material under its inherent powers.

This case raises the question of what is to be done with material seized pursuant to an order of execution which by law cannot be sold by the sheriff at public auction. This problem could arise not only as in LoJi, where criminal fines are sought to be collected through sale of the debtor’s assets, but in any case where illegal material is found among a judgment debtor’s assets.

Section 5233, CPLR, provides for public notice and auction where the sheriff must sell material seized pursuant to an execution order. Subdivision (c) provides that the court may direct immediate sale “or other disposition of property . . . if the urgency of the case requires.” That does not seem precise enough to cover the situation where the sheriff has seized contraband or obscene material or material considered otherwise illegal. It is construed to apply chiefly to perishable goods or to goods which would otherwise lose value if not sold immediately (Practice Commentary, McKinney’s CPLR 5233).

Formerly § 5232, add, L 1962, ch 308; renumbered § 5233, L 1962, ch 315, § 5, eff Sept 1, 1963; L 1976, ch 795, § 1, eff July 24, 1976; L 1979, ch 457, § 1, eff July 5, 1979.