Zweng v. Thompson

283 A.D.2d 641, 725 N.Y.S.2d 863, 2001 N.Y. App. Div. LEXIS 5532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action, inter alia, for replevin and to recover damages for trespass, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 2, 2000, as denied their motion for an order of seizure and, sua sponte, transferred the action to the City Court of the City of Peekskill.

Ordered that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, transferred the action to the City Court of the City of Peekskill, is deemed an application for leave to appeal from that part of the order, and leave to appeal is granted; and it is further,

Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof transferring the action to the City Court of the City of Peekskill; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Since the plaintiffs failed to satisfy their burden of establishing “both a likelihood of success in the action and the absence of a valid defense to [their] claim” (Orix Credit Alliance v Grace Indus., 232 AD2d 537), the Supreme Court properly denied their motion for an order of seizure {see, CPLR 7102 [d]). However, under the circumstances, the Supreme Court improvidently exercised its discretion in transferring the action to the City Court of the City of Peekskill (see, CPLR 325 [d]; 22 NYCRR 202.13; UCCA 202). Krausman, J. P., S. Miller, McGinity and Schmidt, JJ., concur.