Antorino v. Birk

59 A.D.2d 931, 399 N.Y.S.2d 443, 1977 N.Y. App. Div. LEXIS 14158

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1977
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud, defendants appeal from an order of the Supreme Court, Suffolk County, entered February 15, 1977, which, inter alia, granted plaintiffs’ motion for a preliminary injunction. Order reversed, with $50 costs and disbursements, and motion denied. The stay contained in the order under review is continued, however, for a period of 15 days from the date of the entry of the order to be made hereon in order to permit plaintiffs to apply for an order of attachment, if they be so advised. Plaintiffs’ action is based on an alleged fraudulent scheme by defendants Birk and McKay to convert moneys righfully belonging to plaintiff Arpol Travel Agency of Huntington, Inc. Compensatory and punitive damages are demanded. The promissory notes whose transfer is sought to be restrained do not constitute an identifiable fund, the proprietorship of which is contested. Those notes are defendant Birk’s only known assets; plaintiffs are merely attempting to prevent him from rendering himself judgment-proof. CPLR 6301 permits preliminary injunctive relief where the defendant "threatens or is about to do * * * an act in violation of the plaintiff’s rights respecting the subject of the action”. Since plaintiffs’ action is for a sum of money only, and money may not be considered the "subject” of the action, the motion for a preliminary injunction should have been denied (see 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.10; see, also, McLaughlin, 1964 Supplementary Practice Commentaries, CPLR 6301, McKinney’s Cons Laws of NY, Book 7B; cf. Babho Realty Co. v Feffer, 230 App Div 866). Rabin, J. P., Shapiro, Suozzi and O’Connor, JJ., concur.