Opinion
2012-11-14
Norman GRAFSTEIN, respondent, v. Richard SCHWARTZ, et al., appellants, et al., defendants (and another action).
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman and Seth Levine of counsel), for appellants. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman, Todd H. Hesekiel, and Benjamin S. Kaplan of counsel), for respondent.
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman and Seth Levine of counsel), for appellants. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman, Todd H. Hesekiel, and Benjamin S. Kaplan of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for breach of contract and fraud, the defendants Richard Schwartz, Marie Neubert, and North American Enclosures, Inc., appeal from (1) a decision of the Supreme Court, Nassau County (Bucaria, J.), entered December 10, 2010, and (2) an order of the same court dated March 7, 2011, which granted the plaintiff's motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million, and thereupon directed the Sheriff of the County Nassau, or any county of the State of New York, to levy upon the real and personal property of the defendant Richard Schwartz in order to satisfy the order of attachment of $2 million.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the appeals by the defendants Marie Neubert and North American Enclosures, Inc., are dismissed, as those defendants are not aggrieved by the order appealed from ( seeCPLR 5511); and it is further,
ORDERED that the order is reversed insofar as appealed from by the defendant Richard Schwartz, on the law, with one bill of costs, and the plaintiff's motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million is denied.
Attachment is considered a harsh remedy and CPLR 6201 is strictly construed in favor of those against whom it may be employed ( see J.V.W. Inv. Ltd. v. Kelleher, 41 A.D.3d 233, 837 N.Y.S.2d 650;Glazer & Gottlieb v. Nachman, 234 A.D.2d 105, 650 N.Y.S.2d 717;Michaels Elec. Supply Corp. v. Trott Elec., 231 A.D.2d 695, 647 N.Y.S.2d 839). Although the plaintiff established that the defendant Richard Schwartz was a nondomiciliary residing without the state ( seeCPLR 6201[1] ), he failed to show a probability of success on the merits on his claims against that defendant ( seeCPLR 6212[a]; Shisgal v. Brown, 3 A.D.3d 434, 770 N.Y.S.2d 622; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 774, 500 N.Y.S.2d 278). Accordingly, the Supreme Court erred in granting the plaintiff's motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million.