Opinion
06 Civ. 4411 (KNF).
April 18, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Patrick Cahill ("Cahill") brings this action against defendants Emmee McInnis ("EM"), Margaret McInnis and Gordon Santos, alleging breach of contract and tortious conversion of property, including money and a dog named Cinnamon. Cahill seeks damages and has asked the Court to compel EM to return Cinnamon to him. The defendants denied the plaintiff's allegations. Moreover, EM has asserted counterclaims against the plaintiff for breach of contract and the unlawful taking and conversion of money and personal property.
Before the Court is the plaintiff's motion to: (1) amend the complaint, pursuant to Fed.R.Civ.P. 15(a); and (2) compel the surrender of Cinnamon, pursuant to Fed.R.Civ.P. 64. The defendants do not oppose the plaintiff's motion to amend the complaint. However, EM opposes the plaintiff's motion to compel her to surrender Cinnamon to him. The motion is addressed below.
II. BACKGROUND AND FACTS
In June 2003, Cahill and EM, who were involved in a romantic relationship and lived together, acquired two dogs, Cinnamon and Wrigley, at a pet store in Massachusetts. After the dogs were acquired, Cahill purchased supplies for the animals at the local pet store routinely. Cahill traveled on business frequently; when he did so, the dogs were left in EM's care.In April 2005, Cahill and EM agreed to end their relationship and terminate their engagement to be married. Cahill alleges that, at that time, he made a loan to EM to enable her to pay her living expenses. According to Cahill, EM promised to repay the loan upon securing employment.
Cahill maintains he and the defendants were engaged in a business partnership whose purpose was to acquire and resell foreclosed real property. The parties executed a partnership agreement in June 2005. However, EM denies that her true signature appears on that document. Cahill contends the parties agreed that EM would open a bank account, in her name, into which Cahill would deposit funds to be used "as working capital" for the real estate partnership's business. Cahill also contends the parties agreed that the funds he deposited into the bank account were a loan to the partnership. Cahill alleges the parties agreed he would have "complete access to [the bank] account to make transactions" including withdrawals for any purpose. However, Cahill recalls, the defendants had no corresponding authority "to spend, disburse or withdraw funds from [the bank] account," without his prior approval. Cahill maintains that, in September 2005, with the knowledge of the other defendants, and without his permission, EM emptied the bank account and left New York for California with Cinnamon.
III. DISCUSSION
Fed.R.Civ.P. 64 provides, in pertinent part, that:
At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held. . . . The remedies thus available include . . . replevin . . . and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action.
Article 71 of the New York Civil Practice Law and Rules ("CPLR"), rooted in the common-law action of replevin, governs the recovery of chattel. CPLR § 7101 provides that an action may be brought to determine the right to possession of a chattel. CPLR § 7102 provides a separate, quasi-provisional remedy, an order of seizure, that may be issued in connection with an action brought to try the right to possession of a chattel. CPLR § 7102(d) explains that, "[u]pon presentation of the affidavit [discussed in CPLR § 7102(c)] and undertaking and upon finding that it is probable the plaintiff will succeed on the merits and the facts are as stated in the affidavit, the court may grant an order directing the sheriff of any county where the chattel is found to seize the chattel described in the affidavit." This remedy, an order of seizure, would be available to the plaintiff in this action only "under the circumstances and in the manner provided by the law" of New York, as incorporated in Fed.R.Civ.P. 64. However, CPLR Article 71 does not provide for the seizure of chattel located outside New York. See Niagara Mohawk Power Corp. v. Graver Tank Mfg. Co., 470 F. Supp. 1308, 1325 (N.D.N.Y. 1979); Cf. In re Curtina Int'l, 15 B.R. 993, 997-98 (Bankr. S.D.N.Y. 1981) (a federal court "is not empowered to issue a writ of attachment with extraterritorial efficacy so as to reach property of the defendants beyond the borders of the forum state."). Therefore, since it is undisputed that Cinnamon is located in the state of California, the Court cannot issue an order of seizure that would reach chattel beyond New York's territorial boundaries.
Even if the Court were empowered to issue such an order, granting the plaintiff's application for an order of seizure would not be warranted because of deficiencies in the affidavit that was submitted in support of the plaintiff's application.
CPLR Article 71 explains that an application for an order of seizure must be supported by an affidavit which (a) identifies clearly the chattel to be seized and (b) states:
1. that the plaintiff is entitled to possession by virtue of facts set forth;
2. that the chattel is wrongfully held by the defendant named;
3. whether an action to recover the chattel has been commenced, the defendants served, whether they are in default, and, if they have appeared, where papers may be served upon them;
4. the value of each chattel or class of chattels claimed, or the aggregate value of all chattels claimed;
5. if the plaintiff seeks the inclusion in the order of seizure of a provision authorizing the sheriff to break open, enter and search for the chattel, the place where the chattel is located and facts sufficient to establish probable cause to believe that the chattel is located at that place;
6. that no defense to the claim is known to the plaintiff; and
7. if the plaintiff seeks an order of seizure without notice, facts sufficient to establish that unless such order is granted without notice, it is probable the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value.
CPLR § 7102(c).
The burden is on the plaintiff to establish the grounds for the order and to prove that he has met all the statutory requirements for the affidavit that must accompany the application for an order of seizure. Here, Cahill submitted an affidavit in support of his motion to amend the complaint and to compel EM to surrender possession of Cinnamon. In the affidavit, he stated that he purchased Cinnamon and paid various dog-related expenses. Cahill acknowledged that EM cared for Cinnamon during his frequent absences. He also stated that, on September 22, 2005, EM left town, "taking my dog Cinnamon with her."
The facts asserted by Cahill, through his affidavit, suggest that he might be an owner of Cinnamon, not that he is entitled to possess the dog. Therefore, his affidavit does not satisfy the first requirement for such a document, found in CPLR § 7102(c). Furthermore, Cahill never stated, through his affidavit: (a) that Cinnamon is held wrongfully by EM; (b) whether an action to recover chattel has been commenced; (c) Cinnamon's value; and (d) that no defense to the claim is known to him. Cahill attempted to cure the deficiencies in his affidavit through the affirmation his attorney submitted to the Court in reply to EM's submission in opposition to the motion to compel her to surrender Cinnamon. However, an application for an order of seizure must be supported by an affidavit executed by a person with personal knowledge of the underlying facts. See McKesson Automated Healthcare, Inc. v. Brooklyn Hospital Ctr., 4 Misc.3d 491, 497, 779 N.Y.S.2d 765, 769 (Sup.Ct. Kings Cty. 2004); Consolidated Edison v. Pearson, 123 Misc.2d 598, 601, 474 N.Y.S.2d 230, 233 (Civ.Ct. N.Y. Cty. 1984); Consolidated Edison Co. of N.Y. v. Church of St. Cecilia, 125 Misc.2d 744, 748-49, 480 N.Y.S.2d 284, 288 (Civ.Ct. N.Y. Cty. 1984); Brooklyn Union Gas Co. v. Richy, 123 Misc.2d 802, 806, 475 N.Y.S.2d 981, 984 (Civ.Ct. Kings Cty. 1984).
Cahill's attorney does not state, through his affirmation, that he has personal knowledge of the underlying facts. Instead, he relies on pet store receipts, correspondence from the American Kennel Club and a pet store manager's affidavit to conclude that Cahill is entitled to possess Cinnamon. The attorney's lack of personal knowledge renders his affirmation useless as a vehicle through which Cahill's defective affidavit might be cured. Moreover, Cahill's attorney affirms that no defense to the claim is known to him, despite the fact that, in her affidavit in opposition to the motion to compel the surrender of Cinnamon, EM asserted that she is entitled to possess the dog and provided various receipts and copies of communications concerning Cinnamon, which, if accurate, may well establish EM's right to possession, which is a defense to Cahill's claim. See Consolidated Edison Co. of New York v. Lee, 126 Misc.2d 524, 526, 483 N.Y.S.2d 605, 607 (Civ.Ct. N.Y. Cty. 1984). Furthermore, a bond is required by CPLR § 7102(e). The bond to be posted must be in an amount "not less than twice the value of the chattel stated in the plaintiff's affidavit." Inasmuch as the plaintiff's affidavit is deficient, in part because the value of the chattel is not recited therein, the Court is unable to make any determination about the appropriate amount for the bond.
IV. CONCLUSION
For the reasons set forth above, the plaintiff's motion for an order of seizure of chattel is denied and his motion for leave to amend his complaint is granted, since it is unopposed.
SO ORDERED: