Kuriansky v. Bed-Stuy Health Care Corp.

535 N.E.2d 286, 73 N.Y.2d 875, 538 N.Y.S.2d 233, 1988 N.Y. LEXIS 3325

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Plaintiffs made a sufficient showing to satisfy both CPLR 1312, which governs provisional remedies in CPLR article 13-A civil forfeiture actions, and CPLR 6201 and 6301, which provide for attachments and preliminary injunctions in other types of civil actions. Accordingly, the Supreme Court did not abuse its discretion by granting plaintiffs’ motions for provisional relief under CPLR articles 13-A, 62 and 63.

Defendants’ present claim — that conditioning relief from the provisional restraints upon defendants’ disclosure of potentially incriminating financial information was precluded by the Fifth and Sixth Amendments, and deprived defendants of funds necessary to pay counsel — was not preserved for our review. Although defendants broadly argued, in response to plaintiffs’ motion for further discovery, that “CPLR Article 13-A violates defendants’ Fifth Amendment rights,” the record does not demonstrate either that defendants ever actually attempted to invoke their Fifth Amendment privilege or that they made the argument they now advance on appeal. Accordingly, we have no occasion to pass upon that argument.

Chief Judge Wachtler and Judges Simons, Kaye, Alexan der, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order affirmed, etc.