Opinion
June 12, 1967
In an action to recover damages inter alia for personal injury allegedly sustained through the negligence of defendants in the operation of their respective automobiles, defendant Lemieux appeals from so much of an order of the Supreme Court, Nassau County, dated July 19, 1966, as denied his motion to vacate the levy of attachment herein and granted plaintiffs' cross motion to the extent of dismissing the second, fifth and sixth affirmative defenses contained in his answer. Plaintiffs cross-appeal from so much of said order as denied their motion insofar as it was (1) to dismiss the first, third and fourth affirmative defenses contained in Lemieux' answer and (2) to extend their time to commence a proceeding pursuant to CPLR 6214 (subd. [d]) or to take actual custody of the attached property. Order modified by granting plaintiffs' cross motion to the further extent of extending the time within which they may commence a special proceeding to compel payment, delivery or transfer of the property attached to the Sheriff until 90 days after the entry of final judgment herein. As so modified, order affirmed, without costs. In our opinion, CPLR 6214 requires that, in order to keep a levy pursuant to an order of attachment alive beyond the original 90-day period, either the Sheriff must reduce to his custody all property capable of delivery or plaintiffs must commence a special proceeding to compel payment, delivery or transfer to the Sheriff of the thing attached. If neither of these things is done within the 90-day period, the levy is void unless the court, upon motion to plaintiffs, has extended the time within which such a special proceeding may be brought. Under the former practice, a motion for an extension of time had to be made within 90 days of the levy ( Fishman v. Sanders, 18 A.D.2d 689). However, this limitation of the time within which the motion must be brought is no longer applicable (7 Weinstein-Korn-Miller, N Y Civ. Prac., par. 6214.15). This is a proper case for the grant of extension of time within which a special proceeding must be brought, in view of the novelty of the question, the uncertain state of the law and the fact that the requirement of CPLR 6214 is largely ministerial as it relates to intangible property. Of course, the extension is without prejudice to any rights acquired by the third persons between the expiration of the original 90-day period and the date of the order to be made hereon. The affirmative defenses of lack of in rem jurisdiction were properly dismissed, while that portion of the cross motion seeking dismissal of the defenses of lack of in personam jurisdiction was properly denied. Defendant has yet to submit himself to personal jurisdiction, as he has not yet defended upon the merits. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.