Opinion
117663/99.
June 25, 2004.
In this action to enforce a judgment, petitioner moves by order to show cause for the following relief: (1) an order requiring respondent judgment debtor G S Holding, L.P. (GS Holding) to turn over the stock it owns in respondent judgment debtor Goodrich Sherwood Associates, Inc. (Goodrich Sherwood) and in new respondent Whittenwood Associates, Ltd. (Whittenwood) to the Sheriff of New York County, pursuant to the judgment has obtained against GS Holding; (2) an order permitting petitioner to amend the present petition to include Whittenwood as a respondent; (3) an order temporarily restraining Whittenwood, pending determination of the present motion, from making any transfers outside of the normal course of business; (4) an order granting summary judgment against Whittenwood, pursuant to section 273-1 of the New York Debtor and Creditor Law; and (5) an order requiring respondents to respond to petitioner's Third Set of Interrogatories.
At oral argument, petitioner's motion to add Whittenwood as a respondent was granted. The court reserved judgment on the remainder of the present motion.
Petitioner's application for summary judgment against Whittenwood is denied. Summary judgment will not be granted prior to the joinder of issue. CPLR 3212(a); see also Miller v Schreyer, 257 AD2d 358 (1st Dept 1999) . Therefore, Whittenwood will be afforded the opportunity to answer the petition.
Petitioner is also denied the right to obtain a temporary restraining order against Whittenwood pending the determination of the present order to show cause. This court declined to grant a temporary restraining order on the order to show cause, and petitioner has failed to request a preliminary injunction on the present motion. Petitioner has not attempted to meet the requirements for a temporary restraining order or a preliminary injunction (which would have been the appropriate form of motion, after the temporary restraining order was denied). In any event, it is unlikely that petitioner could show an imminency of harm at this point, as there has been more than enough time for Whittenwood to make any transfers of property to others which it might have wished to make.
Respondent has raised no valid objections to petitioner's request that GS Holding turn over its stock in Goodrich Sherwood and Whittenwood. Petitioner has not requested that Whittenwood turn over its own property, as respondent has claimed, but has properly requested the turnover of property belonging to GS Holding, a judgment debtor. See CPLR 5225(a). The fact, raised by respondents at oral argument, that GS Holding may be "put out of business" by this turnover of property is irrelevant, in that petitioner is entitled to do what it must to recover on its judgment, within the confines of the law. Therefore, GS Holding must turn over the stock it owns in Goodrich Sherwood, and in Whittenwood, to the Sheriff of the City of New York, in satisfaction of the judgment. Petitioner has also informally requested that any funds remaining in the bank accounts of GS Holding and Goodrich and Sherman, sums of a most nominal nature, be turned over as well. However, this task should be accomplished by a proper execution on these accounts, carried out by the Sheriff.
Respondents object to petitioner's demand that they respond to petitioner's Third Set of Interrogatories, on the ground that all of the interrogatories are "contention" interrogatories, which are impermissible.
"Interrogatories which call for opinions or conclusions of law, rather than relevant facts, should be stricken.'' Mijatovic Noonan, 172 AD2d 806, 806 (2d Dept 1991); see als Lakeville Merrick Corp v Town Board, Town of Islip , 23 AD2d 584 (2d Dept 1965) (interrogatories which ask for a conclusion of fact or law will not be permitted). Petitioner's third interrogatory calls for respondents to set forth all documents upon which they rely to support their contention that certain payments did not render respondents Translink America Inc. and/or TLA Worldwide insolvent. This query calls for respondents to provide support for a conclusion, and is therefore improper. It will, therefore, be stricken. The remaining interrogatories do not suffer from the same infirmity, are permissible, and must be answered.
Accordingly, it is
ORDERED that petitioner's motion is granted, in part, as follows:
(1) respondent G S Holding, L.P. is directed to turn over to the Sheriff of the City of New York all of the stock it holds in respondents Goodrich Sherwood Associates, Inc. and Whittenwood Associates, Ltd. within 20 days of receipt of this order with notice of entry; and
(2) respondents are directed to respond to petitioner's Third Set of Interrogatories, excluding interrogatory #3, within 10 days of receipt of this order with notice of entry.
The motion is in all other respects denied.
In accordance with this court's prior order from the bench, permitting petitioner to add Whittenwood Associates, Ltd. as a respondent, it is
ORDERED that, upon completion of service of the petition upon Whittenwood Associates, Ltd., counsel for petitioner shall serve a copy of this order with notice of entry upon the Clerk of the Court and upon the Clerk of the Trial Support Office (Room 158), who are directed to amend their records to reflect such change in the caption herein.