DXB Video Tapes, Inc. v. Halay

239 A.D.2d 205, 657 N.Y.S.2d 179, 1997 N.Y. App. Div. LEXIS 5170

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Stuart Cohen, J.), entered on or about December 18, 1996, which, to the extent appealed from as limited by plaintiff’s brief, denied plaintiff’s cross motion for summary judgment, unanimously modified, on the law, to grant plaintiff’s cross motion for summary judgment in the amount of $98,234.99, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of plaintiff accordingly. Order, same court and Justice, entered on or about the same date, which denied plaintiff’s motion for an order of attachment, unanimously affirmed, without costs.

Defendants admit that they owe plaintiff $98,234.99 for goods sold and delivered, and their only claimed defenses are either raised for the first time on appeal, or without evidentiary support. Accordingly, summary judgment should have been granted to plaintiff (see, City of New York v Stack, 178 AD2d , lv denied 80 NY2d 753). The motion court properly denied plaintiff's motion for an order of attachment upon property that has already been seized pursuant to a search warrant issued in connection with a criminal case against defendants, and is currently in the custody either of the issuing court or the New York County District Attorney’s Office. Should plaintiff desire to seek enforcement of the judgment, it may proceed before the court that issued the search warrant (see, CPL 690.55). We decline to reach any other issues pertaining to the motion for an order of attachment. Concur—Ellerin, J. P., Wallach, Rubin and Mazzarelli, JJ.