Bertucci v. Newton

Appellate Division of the Supreme Court of New York

Bertucci v. Newton

53 A.D.2d 679, 385 N.Y.S.2d 132, 1976 N.Y. App. Div. LEXIS 13428

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1976

StatusPublished

This text of 53 A.D.2d 679 (Bertucci v. Newton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bertucci v. Newton, 53 A.D.2d 679, 385 N.Y.S.2d 132, 1976 N.Y. App. Div. LEXIS 13428 (N.Y. Ct. App. 1976).

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Opinion

In a shareholder’s derivative action grounded upon an alleged conversion of corporate funds, plaintiff appeals from an order of the Supreme Court, Nassau County, dated February 9, 1976, which, inter alia, vacated a prior order of attachment against the respondents Newton. Order reversed, on the law and the facts and in the exercise of discretion, with $50 costs and disbursements, and order of attachment reinstated. Plaintiff is directed to proceed forthwith to an immediate trial, and, upon his failure so to do, leave is hereby granted to respondents to seek vacatur of the order of attachment upon such ground. In our opinion plaintiff has made a sufficient showing in the underlying conversion action to warrant issuance of an order of attachment pursuant to CPLR 6201 (subd 8). Accordingly, the vacatur of the order of attachment was improper (see CPLR 6212; Zenith Bathing Pavilion v Fair Oaks S. S. Corp., 240 NY 307; AMF Inc. v Algo Distrs., 48 AD2d 352; Stines v Hertz Corp., 22 AD2d 823, affd 16 NY2d 605). However, we further believe that, given the harsh nature of this particular remedy, the interests of justice require an immediate trial. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.

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In a shareholder’s derivative action grounded upon an alleged conversion of corporate funds, plaintiff appeals from an order of the Supreme Court, Nassau County, dated February 9, 1976, which, inter alia, vacated a prior order of attachment against the respondents Newton. Order reversed, on the law and the facts and in the exercise of discretion, with $50 costs and disbursements, and order of attachment reinstated. Plaintiff is directed to proceed forthwith to an immediate trial, and, upon his failure so to do, leave is hereby granted to respondents to seek vacatur of the order of attachment upon such ground. In our opinion plaintiff has made a sufficient showing in the underlying conversion action to warrant issuance of an order of attachment pursuant to CPLR 6201 (subd 8). Accordingly, the vacatur of the order of attachment was improper (see CPLR 6212; Zenith Bathing Pavilion v Fair Oaks S. S. Corp., 240 NY 307; AMF Inc. v Algo Distrs., 48 AD2d 352; Stines v Hertz Corp., 22 AD2d 823, affd 16 NY2d 605). However, we further believe that, given the harsh nature of this particular remedy, the interests of justice require an immediate trial. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.

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Bluebook (online)

53 A.D.2d 679, 385 N.Y.S.2d 132, 1976 N.Y. App. Div. LEXIS 13428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertucci-v-newton-nyappdiv-1976.

Opinion

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