Karnell v. Mincieli

81 A.D.2d 634, 440 N.Y.S.2d 557, 1981 N.Y. App. Div. LEXIS 11139

Opinion

— In an action to impose a constructive trust upon the proceeds of a fire insurance policy, plaintiff appeals from an order of the Supreme Court, Rockland County, dated June 3, 1980, which denied his motion to confirm an ex parte order of attachment and granted defendant’s cross motion to vacate the order of attachment. Order affirmed, with $50 costs and disbursements. Special Term properly exercised its discretion in granting defendant’s cross motion to vacate the order of attachment. Plaintiff failed to meet his burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits (see CPLR 6211, subd [b]; 6212, subd [a]; 6223, subd [b]). Damiani, J.P., Mangano, Gibbons and Gulotta, JJ., concur.