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THE MOTION FOR AN ORDER OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for an order of attachment should not have been granted:

“In order to be granted an order of attachment under CPLR 6201(3), a plaintiff must demonstrate that the defendant has concealed or is about to conceal property in one or more of several enumerated ways, and has acted or will act with the intent to defraud creditors, or to frustrate the enforcement of a judgment that might be rendered in favor of the plaintiff” … . “Affidavits containing allegations raising a mere suspicion of an intent to defraud are insufficient. It must appear that such fraudulent intent really existed in the defendant’s mind” … . The “mere removal, assignment or other disposition of property is not grounds for attachment” … . Cyngiel v Krigsman, 2021 NY Slip Op 01391, Second Dept 3-10-21

 

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CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DAMAGES FOR FRAUD SHOULD HAVE BEEN BASED UPON OUT OF POCKET LOSS, NOT PROFITS THAT WOULD HAVE BEEN EARNED ABSENT THE FRAUD, EVEN THOUGH RESPONDENT WAS ENTITLED TO MORE DAMAGES UNDER THE OUT OF POCKET RULE, NO RELIEF CAN BE AFFORDED TO THE NONAPPEALING PARTY (SECOND DEPT).
CHANGED CIRCUMSTANCES BROUGHT TO THE APPELLATE COURT’S ATTENTION BY THE ATTORNEYS FOR THE CHILDREN RENDERED THE RECORD INSUFFICIENT FOR REVIEW OF THE CUSTODY RULING; MATTER REMITTED (SECOND DEPT).
THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).
PLAINTIFF’S KNEE BECAME STIFF AND IMPOSSIBLE TO BEND AFTER SURGERY; PLAINTIFF SUED THE DEFENDANT DOCTOR WHO TREATED HER AT THE POST-SURGERY REHABILITATION CENTER; THE DEFENDANT DOCTOR, WHO DID NOT PERFORM THE SURGERY, HAD CERTIFIED AND RECOMMENDED PHYSICAL AND OCCUPATIONAL THERAPY FOR PLAINTIFF AT THE REHABILITATION CENTER; BECAUSE THE DEFENDANT DOCTOR PLAYED NO ROLE IN THE THERAPY ITSELF, HIS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
IN THIS FORECLOSURE ACTION, THE RPAPL 1304 NOTICE DID NOT INCLUDE THE REQUIRED INFORMATION AND THE PROOF OF MAILING OF THE NOTICE WAS DEFICIENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
​ A VOLUNTARY DISCONTINUANCE OF A FORECLOSURE ACTION NO LONGER STOPS THE STATUTE OF LIMITATIONS (SECOND DEPT). ​

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