Opinion
September 8, 1975
Appeal from the Civil Court of the City of New York, New York County, EUGENE R. WOLIN, J.
Delafield, Hope Linker (Clayton P. Wood and Fred Noz of counsel), for appellant.
Joseph Mandell and Emanuel Thebner for respondent.
An order of arrest pursuant to CPLR 6101 is a provisional remedy which is intended to protect the plaintiff during the pendency of an action. If the relief is based upon a defendant's fraud and deceit, as it is here, then that relief is only available until judgment (CPLR 6111, 6101 PLR, subd 1). In this case, however, plaintiff delayed in seeking the relief until after the trial court awarded it judgment. While appellant may have entered the judgment to prevent an order of arrest, which he was legally permitted to do (CPLR 5017, subd a), it was an abuse of discretion to vacate the judgment so as to permit the issuance of an order of arrest. Accordingly, the order of arrest was also improperly granted.
Order, dated March 10, 1975 (WOLIN, J.), reversed, motion to vacate denied, and motion for an order of arrest denied, with $10 costs to appellant.
Concur — DUDLEY, P.J., FINE and FRANK, JJ.