Curran v. Essex Island Marina, Inc.

70 A.D.2d 820, 417 N.Y.S.2d 469, 1979 N.Y. App. Div. LEXIS 12372

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1979
• Status: Published

Opinion

Order, Supreme Court, New York County, entered October 26, 1978, denying the motion by defendants Essex Island Marina, Inc., Louis W. Schieferdecker and Walter Schieferdecker for an order of attachment against a policy of liability insurance issued to defendant Southern New England Telephone Company, sought to secure appellants’ cross claim for indemnity, and the order, entered January 8, 1979, denying appellants’ motion, described as a motion for renewal, unanimously affirmed, with one bill of costs on the appeal, without prejudice to an appropriate and sufficient application for an independent order of attachment. The papers submitted in support of both the original application and the motion for "renewal” were insufficient to support issuance of a new and independent order of attachment in connection with the cross claim. As with any other attachment, an application for a Seider-Roth attachment must show the existence of a "debt or property against which a money judgment may be enforced” (CPLR 6202), a "contractual obligation to * * * defend * * * and * * * to indemnify.” (Seider v Roth, 17 NY2d 111, 113.) An application for a Seider-Roth attachment, on a cross claim, requires some proof of the existence of an obligation to defend and indemnify with respect to the cross claim, in the amount sought, which here was clearly lacking. Concur — Birns, J. P., Fein, Sullivan, Markewich and Silverman, JJ.