Opinion
July 2, 1970
Order entered March 25, 1970, denying plaintiff's motion for summary judgment, unanimously reversed on the law, with $50 costs and disbursements to the appellant, the motion granted, and matter remanded for assessment of all legal costs and disbursements and proper travel expenses, if any, sustained by reason of the attachment. The attachment bond sued upon in compliance of CPLR 6212 (subd. [b]) provides "that the plaintiff [Romia] shall pay to the defendant [Maglificio] all legal costs and damages which may be sustained by reason of the attachment if the defendant recovers judgment". After levy was made on plaintiff-appellant's property, the United States District Court for the Southern District of New York rendered judgment in favor of the defendant Maglificio (plaintiff-appellant here) dismissing the complaint. The complaint having been dismissed and the attachment vacated, there are no triable issues and all that remains is a determination of the damages. Plaintiff-appellant is entitled to summary judgment. (See Siegel v. Northern Blvd. 80th St. Corp., 31 A.D.2d 182; Skanska Banken v. Albert, 25 A.D.2d 184; Israel Commodity Co. v. Banco Do Brasil, S.A., 50 Misc.2d 362.)
Concur — Stevens, P.J., Eager, McGivern, Nunez and McNally, JJ.