February 20, 2008
PAUL IZZO, PERSONALLY AND ON BEHALF OF THE ESTATE OF CONCETTA IZZO, PLAINTIFF,
LOUIS C. IZZO AND CAROL GUTTERMAN, DEFENDANTS.
JOEL KREIZMAN AS EXECUTOR OF THE ESTATE OF CONCETTA IZZO, PLAINTIFF-RESPONDENT,
PAUL IZZO, INDIVIDUALLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4990-03 & L-5120-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 24, 2008
Before Judges Axelrad, Payne and Sapp-Peterson.
Following a jury trial, by order of December l, 2006, judgment was entered in favor of plaintiff, Joel Kreizman, as Executor of the Estate of Concetta Izzo, against defendant, Paul Izzo, in the amount of $112,000, together with pre-judgment interest and court costs. Defendant filed an appeal but was unsuccessful in obtaining a stay of the judgment.*fn1
Plaintiff then sought to execute against disbursements that defendant received periodically as twenty-five percent owner and general partner of Izzo Realty Associates, LP, which owned a parcel of commercial real estate in Old Bridge. The realty was held as a passive investment and was managed by an independent management company, J.L. Krinsky and Company, Inc. A writ of execution was served on its property manager on June 21, 2007, and two distributions to defendant were levied upon totaling $7500. Plaintiff mailed defendant a notice of the levy the next day but it was sent to the wrong address; it was resent and received by defendant on or about July 16, 2007. Defendant also received plaintiff's motion seeking an order requiring turnover of the levied funds, to which he filed written opposition claiming failure to comply with the rules of execution and levy in excess of the statutory limitation.
Defendant unsuccessfully argued that the writ of execution should be vacated because the notice to the debtor was not mailed the day the levy was made pursuant to Rule 4:59-1(g) and the levy was not made within thirty days of the writ pursuant to Rule 4:60-7. Judge Mullaney dismissed these arguments as "form over substance," finding the time delay did not prejudice defendant because he was notified of the levy and had an adequate opportunity to raise his defenses in a judicial forum prior to the turnover of funds pursuant to the writ of execution. Substantively, defendant contended the distributions from Izzo Realty Associates, LP that were levied upon were the equivalent of income from wages, and thus were subject to the limitations of the wage execution statute, N.J.S.A. 2A:17-56,*fn2 relying on our holding in Zavodnick v. Leven, 340 N.J. Super. 94, 98 (App. Div. 2001), that a judgment debtor's distributive share of partnership profits from a law firm are subject to this statutory limitation on executions. Defendant certified the partnership profit distributions were his only source of income and thus contended plaintiff's execution was limited to ten percent of the amount levied upon. The judge rejected this argument, finding these were funds derived from an investment, subject to execution without limitation.
Defendant renews these arguments on appeal. He also argues that Izzo Realty Associates, LP still exists as a partnership and thus he is entitled to the protections of the Uniform Partnership Law, although he does not clearly specify which protections. Defendants arguments are without merit and we affirm substantially for the reasons articulated by Judge Mullaney on the record following oral argument. We add the following brief comments. The technical non-compliance with the strict time requirements of the court rules did not infringe in any way upon defendant's due process rights to contest the levy and turnover of funds. The distributions made to defendant on account of the investment property were not the functional equivalent of wages and, accordingly, were not subject to any statutory limitation on execution. Nothing presented to Judge Mullaney suggested the distributions were compensation paid to defendant for personal services; there is no evidence that he was employed in any fashion by the partnership or that he performed any services on behalf of the real estate at this time. Defendant was simply a passive investor in income-producing property. It is immaterial whether the disbursements levied upon by plaintiff were considered distributions of profits to defendant from a partnership or distributions of profits from defendant's property interest as a tenant in common with his former partners following the May 2007 court-ordered dissolution of Izzo Realty Associates, LP. In either instance, the distributions made to defendant constituted profits earned from investment property and thus the entire $7500 was subject to execution and turn over to plaintiff on account of its outstanding judgment.