Opinion
February 28, 1975
Appeal from the Erie Special Term.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Goldman, JJ.
Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Defendant, in an action to determine right to possession of certain paintings, appeals from order of Special Term granting seizure of said chattels on behalf of plaintiff pursuant to CPLR 7102. Special Term was correct in granting said order pendente lite since the pleadings, affidavits and exhibits submitted were sufficient to establish prima facie plaintiff's superior possessory right to said paintings for the purpose of a CPLR 7102 application. Special Term incorrectly implied, however, that the agreements upon which defendant premises his possessory rights to the paintings are, as a matter of law, unenforceable. Under the conflicting allegations of the parties such determination must abide the plenary trial of the basic action herein. In addition, considering the asserted "uniqueness" of the painting titled "Spirit of 76", the final decretal paragraph of the order should be modified to include the plaintiff in the restraining provisions therein contained (CPLR 7109).