Opinion
03-23-2016
Phyllis HUME, etc., respondent, v. 1 PROSPECT PARK ALF, LLC, appellant.
Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (Gerald T. Ford, Jerry A. Cuomo, and Brad M. Gallagher of counsel), for appellant. Dennis J. Kelly, P.C., Glen Head, N.Y. (John K. O'Hara and Robert Kerrigan of counsel), for respondent.
Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (Gerald T. Ford, Jerry A. Cuomo, and Brad M. Gallagher of counsel), for appellant.
Dennis J. Kelly, P.C., Glen Head, N.Y. (John K. O'Hara and Robert Kerrigan of counsel), for respondent.
Opinion
In an action, inter alia, to recover damages for negligence and fraud, the defendant appeals from (1) an order of the Supreme Court, Kings County (Schack, J.), dated August 3, 2015, and (2) an order of the same court, also dated August 3, 2015, which granted the plaintiff's motion for an order of attachment against its real property in the sum of $5 million and directed the plaintiff to submit and file a bond in the amount of $500.
ORDERED that the appeal from the first order dated August 3, 2015, is dismissed, as that order was superseded by the second order dated August 3, 2015; and it is further,
ORDERED that the second order dated August 3, 2015, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing the plaintiff to submit and file a bond in the amount of $500, and substituting therefor a provision directing the plaintiff to submit and file a bond in the amount of $2,500; as so modified, the second order dated August 3, 2015, is affirmed, and the first order dated August 3, 2015, is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
Attachment is a provisional remedy designed to secure a debt by preliminary levy upon the property of the debtor to conserve it for eventual execution, and the courts have strictly construed the attachment statute in favor of those against whom it may be employed (see Grafstein v. Schwartz, 100 A.D.3d 699, 699, 953 N.Y.S.2d 681; J.V.W. Inv. Ltd. v. Kelleher, 41 A.D.3d 233, 837 N.Y.S.2d 650; Michaels Elec. Supply Corp. v. Trott Elec., 231 A.D.2d 695, 647 N.Y.S.2d 839). In order to be granted an order of attachment under CPLR 6201(3), a “plaintiff must demonstrate that the defendant has concealed or is about to conceal property in one or more of several enumerated ways, and has acted or will act with the intent to defraud creditors or to frustrate the enforcement of a judgment that might be rendered in favor of the plaintiff” (Benedict v. Browne, 289 A.D.2d 433, 433, 735 N.Y.S.2d 404; see Corsi v. Vroman, 37 A.D.3d 397, 397, 829 N.Y.S.2d 234). In addition to proving fraudulent intent, the plaintiff must show a probability of success on the merits (see CPLR 6212[a]; Shisgal v. Brown, 3 A.D.3d 434, 770 N.Y.S.2d 622; Benedict v. Browne, 289 A.D.2d at 433, 735 N.Y.S.2d 404).
Here, the plaintiff met her burden of establishing conduct which satisfies the requirements of CPLR 6201(3) (see Mineola Ford Sales v. Rapp, 242 A.D.2d 371, 371, 661 N.Y.S.2d 281; cf. Corsi v. Vroman, 37 A.D.3d at 397, 829 N.Y.S.2d 234), and sufficiently demonstrated a probability of success on the merits of her claims against the defendant (cf. Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 774, 500 N.Y.S.2d 278; cf. Ehrenkranz v. 58 MHR, LLC, 127 A.D.3d 918, 919, 6 N.Y.S.3d 649). Accordingly, the Supreme Court properly granted the plaintiff's motion for an order of attachment against the defendant's real property.
However, under the circumstances of this case, the $500 bond fixed by the Supreme Court as an undertaking was inadequate to protect the defendant's interest during the pendency of this action (see CPLR 6212[e]; Von Bock v. Metropolitan Life Ins. Co., 223 A.D.2d 700, 637 N.Y.S.2d 940; Middle Vil. Assoc. v. Vertical Indus. Park Assoc., 176 A.D.2d 708, 575 N.Y.S.2d 89; Weitzen v. 130 E. '65th St. Sponsor Corp., 86 A.D.2d 511, 445 N.Y.S.2d 744), and, accordingly, we increase it.
The defendant's remaining contentions are without merit.