Summary
holding grant of vacatur appropriate because plaintiff failed to establish grounds for attachment
Summary of this case from Dafeng Hengwei Textile Co. v. Aceco Indus.Opinion
November 6, 1995
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Upon a motion to vacate an attachment, the plaintiff has the burden of establishing the grounds for the attachment, the need for continuing the levy, and the probability of success on the merits (see, CPLR 6223 [b]). The court has broad discretion in considering such an application (see, Zenith Bathing Pavilion v Fair Oaks S.S. Corp., 240 N.Y. 307, 312-313).
Here, the plaintiff did not establish that the defendant Richard Rogers could not be personally served by any available method (see, CPLR 308, 6201). Moreover, the plaintiff's allegation that Richard Rogers was attempting to defraud his creditors or frustrate enforcement of a judgment against him was devoid of evidentiary support (see, Computer Strategies v Commodore Bus. Machs., 105 A.D.2d 167, 173). The Supreme Court therefore properly granted the respondent's application to vacate the order of attachment. Sullivan, J.P., O'Brien, Copertino and Krausman, JJ., concur.