Macmillan, Inc. v. Hafner

42 A.D.2d 533, 344 N.Y.S.2d 729, 1973 N.Y. App. Div. LEXIS 4186

Opinion

Order, Supreme Court, New York County, entered on November 16, 1972, denying appellant’s motion to vacate an order of attachment and for other relief, unanimously modified, on the law, so as to grant the motion to vacate the attachment, and otherwise affirmed, without costs and without disbursements. At best, respondent presented but a scintilla of proof as to the requisite elements of the fraud cause of action alleged in the complaint. Such a perfunctory showing falls short of the requirements to support the drastic remedy of attachment. The attachment was obtained ex parte long after the action had been commenced and defendants had appeared in the action. No question of jurisdiction is involved. Respondent has failed to establish that appellant knew that certain accounts receivable were uncollectible on September 30, 1968, the date when he warranted the collectibility thereof. At most respondent has shown that some of the accounts could not be collected in 1970 or 1971. This proof is insufficient to entitle respondent to the attachment under the provisions of CPLR 6201 (subd. 8) and 6211. Concur — Nunez, J. P., Kupferman, Steuer, Tilzer and Capozzoli, JJ.