M & R Leasing Inc. v. Bank Atlantic

Appellate Division of the Supreme Court of New York

M & R Leasing Inc. v. Bank Atlantic

38 A.D.3d 239, 832 N.Y.S.2d 799

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 2007

StatusPublished

This text of 38 A.D.3d 239 (M & R Leasing Inc. v. Bank Atlantic) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

M & R Leasing Inc. v. Bank Atlantic, 38 A.D.3d 239, 832 N.Y.S.2d 799 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered August 11, 2006, which, to the extent appealed from, denied defendant Bank Atlantic’s request for extension of its restraint on an account at defendants Credit Suisse, limited to one year the extension of Bank Atlantic’s execution served on the Sheriff of New York City, and prohibited any further extensions of the execution, unanimously modified, on the law, the extension of restraint on the account granted, the prohibition against any further extensions of the restraint vacated, and otherwise affirmed, without costs.

Although the terms of the restraining order were within the court’s discretion (CPLR 5240; see generally Guardian Loan Co. v Early, 47 NY2d 515, 519 [1979]), Bank Atlantic’s motion was unopposed, and it has demonstrated that it will suffer prejudice without the opportunity for continuing restraint. Furthermore, the record reveals no countervailing rationale for the denial of that relief. Similarly, there is no reason in the record for prohibiting any further extension of the execution served on the Sheriff beyond the current extended date of June 15, 2007. That determination is best left to an appropriate application based on the facts existing at that time. Concur—Tom, J.R, Sullivan, Williams, Buckley and Kavanagh, JJ.

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Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered August 11, 2006, which, to the extent appealed from, denied defendant Bank Atlantic’s request for extension of its restraint on an account at defendants Credit Suisse, limited to one year the extension of Bank Atlantic’s execution served on the Sheriff of New York City, and prohibited any further extensions of the execution, unanimously modified, on the law, the extension of restraint on the account granted, the prohibition against any further extensions of the restraint vacated, and otherwise affirmed, without costs.

Although the terms of the restraining order were within the court’s discretion (CPLR 5240; see generally Guardian Loan Co. v Early, 47 NY2d 515, 519 [1979]), Bank Atlantic’s motion was unopposed, and it has demonstrated that it will suffer prejudice without the opportunity for continuing restraint. Furthermore, the record reveals no countervailing rationale for the denial of that relief. Similarly, there is no reason in the record for prohibiting any further extension of the execution served on the Sheriff beyond the current extended date of June 15, 2007. That determination is best left to an appropriate application based on the facts existing at that time. Concur—Tom, J.R, Sullivan, Williams, Buckley and Kavanagh, JJ.

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Bluebook (online)

38 A.D.3d 239, 832 N.Y.S.2d 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-r-leasing-inc-v-bank-atlantic-nyappdiv-2007.

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