Irving & William H. Stark, Inc. v. Milberg Factors, Inc.

38 A.D.2d 526, 326 N.Y.S.2d 867, 1971 N.Y. App. Div. LEXIS 2760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1971
• Status: Published

Opinion

Order, Supreme Court, New York County, entered July 26, 1971, denying appellant’s motion to rehear and renew an application theretofore made by petitioner to compel appellant to turn over property belonging to a judgment debtor, unanimously reversed, on the law, and the motion to renew granted, and upon such renewal, the judgment entered on July 28, 1971 is vacated and petitioner’s application is granted to the extent of directing a trial of the issues generated by the petition and cross-motion. Appellant shall recover of respondent one bill of $50 costs and disbursements of this appeal. (See Matter of First Small Inv. Corp. v. Zaretsky, 46 Misc 2d 328.) Petitioner, a judgment creditor of Kinetic International Corp., has not, as a matter of law, sustained its burden of proving that the $7,500 held by appellant belonged to Kinetic, the judgment debtor (CPLR 5225, subd. [b]). Actually, the documentary proof seems to indicate otherwise. However, in the interests of justice we feel that the petitioner should have an opportunity of developing facts at a hearing where appellant and Aetna Factors Corporation, Ltd., can be examined with respect to the source and ownership of the $7,500 and its status as a fund subject to Aetna’s security interest. In view of the above disposition, the appeal from the judgment of Supreme Court, New York County, entered on July 28, 1971, is unanimously dismissed as academic, without costs and without disbursements. Concur—Stevens, P. J., Capozzoli, McGivern, Nunez and McNally, JJ.