David Avigdor et al. v. Morton Avigdor et al.

8. David Avigdor et al. v. Morton Avigdor et al.

Citation: 2026 WL 452257 (N.Y. App. Div. 2d Dep’t, Feb. 18, 2026), Index No. 508238/22

Relevant Facts

• In 2014, Moshe Twersky, as executor of the estate of Elias Gelbwachs, obtained a money judgment against Morton Avigdor (the “Twersky judgment”).

• In June 2019, David and Merrill Avigdor (Morton’s brothers) obtained an arbitration award against Morton for misappropriation of funds from their mother’s estate.

• A stipulation of settlement provided that upon sale of Morton’s Brooklyn home, $700,000 would be deposited in escrow with Choice Abstract Corp.

• In November 2021, the parties directed Choice to release $631,000 to David and the balance to Morton.

• In January 2022, the attorney for Gelbwachs’s estate advised Choice of the Twersky judgment and directed Choice not to release the funds.

• David and Merrill commenced a CPLR 5239/5240 proceeding to determine adverse claims to the escrow funds.

Legal Issues

Whether David and Merrill had standing under CPLR 5239 as “interested persons”; whether the escrow funds subject to the debtor’s control could be reached by the Twersky judgment creditor despite the settlement stipulation.

Positions of the Parties

David merrill: Had standing as “interested persons” and the stipulation and arbitration award put the escrow funds beyond the Twersky creditor’s reach.

Twersky: The escrow funds remained subject to claims by other creditors.

Choice: Petitioners lacked standing.

Decision of the Court

The petition was DENIED. The Appellate Division AFFIRMED the denial.

Reasons for the Decision

• The petitioners had standing as “interested persons” under CPLR 5239.

• However, the stipulation and arbitration award confirmation did not put the escrow funds beyond the Twersky respondents’ reach.

• When a debtor places funds in escrow for specific creditors, those funds remain subject to the debtor’s “present or future control” and are thus reachable by other creditors.

• The November 2021 letter directing Choice to release the escrow funds demonstrated retained control.