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  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview
  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview
  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview
  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview
  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview
  • Lane'S Floor Coverings & Interiors, Inc. And Lane Brettschenider v. Howard Smith Tort document preview 
						
                                
Preview

                                (FILED: NEW YORK COUNTY CLERK 01/99 /2014}90132/2014
NYSCEF      D§GpreWe COQRT OF THE STATE OF NEW YORK CENMWDY ORKSCHUNTYO 1/31/2014
         PRESENT:             MANUEL J. MENDEZ                                                     PART       _43.
                                                            Justice
         TANE’S FLOOR COVERINGS & INTERIORS, INC.
         And LANE BRETTSCHEIDER,
                       Plaintiff,                                         INDEX No.                150132 14
                                                                            MOTION DATE        01-29-2014
                                       “ve
                                                                            MOTION SEQ. NO.           004
         HOWARD SMITH,
                             ndants.
                                                                            [MOTION CAL. NO.

         The foll     papers, numbered 1 to_o~      were read on this motion for an injunction and order of
         attachment and
                                                                                               PAPERS NUMBERED
         Notice of Motion! Order to Show Cause — Affidavits — Exhibits                           4-2
         Answering Affidavits — Exhibits
         Replying Affidavits

         Cross-Motion:                 Yes   X No
we
ou
ea       Upon a reading of the foregoing cited papers, it is ordered that plaintiffs’ motion for an
Zo
5z       injunction and order of attachment is granted.
os               Plaintiff, a privately owned company hired defendant as its controller. In his
FO
ad
a2       capacity as controller defendant was in charge of all financial aspects of plaintiff's
“oO
eu       business. Defendant was given access to all of plaintiff's commercial bank accounts
ww       as well as to personal accounts belonging to plaintiff Brettschneider. It is alleged that
ox       defendant embezzled approximately $237,336.00 from plaintiffs’ commercial and
ye
fe       personal bank accounts and that he may leave the jurisdiction and secrete the assets
>
aa       he has misappropriated,
                 Plaintiffs’ now move for an injunction and an order of attachment of assets
         which defendant possesses consisting of a house located at 2700 Natta Boulevard,
         Bellmore, New York, a house located at 995 Skyline Drive, Coram, New York, a 401(K)
         account maintained at T. Rowe Price containing approximately $62,013.36 and at least
         three bank accounts at, HSBC and TD Bank. Defendant has not submitted papers in
         opposition to the motion.
                 “A party moving for a Preliminary Injunction must demonstrate by clear and
         convincing evidence (1) a likelihood of ultimate success on the merits, (2) irreparable
         injury absent the granting of the liminary Injunction, and (3) thata balancing of the
         equities favors the movant’s posit   n. The movant must show that the irreparable harm
         is imminent, not remote or speculative.   Finally, the decision to grant or deny a
         Preliminary Injunction lies within the sound discretion of the court.”( Family Friendly
         Media Inc.,   v. Recorder Television Network, 74 A.D. 3d 738, 903 N.Y.S.2d 80 [2". Dept.
2010).
         Plaintiff has shown by clear and convincing evidence the three prongs required
for the granting of a preliminary injunction. It has proven a likelihood of ultimate
success on the merits, irreparable injury and that the equities lie in its favor; leaving
this court no other option in the exercise of its discretion, but to grant its request.
        “The provisional remedy of attachment has as its object the securing of a debt
by a preliminary levy upon property of the debtor to conserve it for eventual execution.
The purpose of the remedy is to obtain possession of and hold the debtor's property
until the recovery of judgment and to prevent the debtor from disposing of it so as to
defeat the object of the action in which  is granted. Attachment thus provides for a
summary remedy by which property is impounded before judgment."(12 Carmody-Wait
2d § 76:2). “An attachment is considered a harsh remedy, the statute is strictly
construed in favor of those against whom it may be employed. Moreover, the issuance
of an order of attachment is within the sound discretion of the trial court” { First
National Bank of Downsville v. Highland Hardwoods, 98 A.D. 2d 924, 471 N.Y.S.2d 360
[3° . Dept 1983).
       The party seeking an order of attachment must satisfy the grounds enumerated
in CPLR § 6201. The action must be one where the plaint           is entitled in whole or in
part to a money judgment, and the defendants must be (1)             er non-residents or non-
domiciliaries of this state; or (2) if resident not subject to service within the state; or (3)
if the defendant with intent to defraud creditors or frustrate the enforcement of a
judgment that might be rendered in plaintiff's favor has assigned, disposed of,
encumbered or secreted property or removed it from the state or is about to do any of
these acts.

         Plaintiff has satisfied the grounds enumerated in CPLR § 6201.        Defendants
might frustrate the enforcement of any judgment that might be rendered in plaintiffs’
favor by assigning, disposing of property or removing property from the state.

         Accordingly, it is ORDERED that the motion for injunctive relief and for an order
of attachment is granted, and it is further

         ORDERED, that defendant, his agents, servants or employees is enjoined from
disposing of, transferring and or encumbering any of his assets, to wit: A house
located at 2700 Natta Boulevard, Bellmore, New York, a house located at 995 Skyline
Drive, Coram, New York, a 401(K) account maintained at T. Rowe Price containing
approximately $62,013.36 and at least three bank accounts at, HSBC and TD Bank, and it
is further

        ORDERED that the amount to be secured by this order of attachment, exclusive
of probable interest, costs and sheriff's fees and expenses, shall be $237,336.00, and it
is further

        ORDERED that the plaintiffs’ undertaking is fixed in the sum of $11,866.80, and it
is further
ORDERED that the sheriff of the City of New York, or the sheriff of any county of
the State of New York, shall levy within his jurisdiction, at any time before final
judgment, upon such real and personal property in which the defendant has an interest
a will satisfy $237,336.00 the amount of plaintiffs’ demand, together with probable
interest, costs and the sheriff's fees and expenses, including the following property:
A house located at 2700 Natta Boulevard, Bellmore, New York, a house located at 995
Skyline Drive, Coram, New York, a 401(K) account maintained at T. Rowe Price
containing approximately $62,013.36 and at least three bank accounts at, HSBC and TD
Bank, and that the sheriff proceed herein in the manner and make his return within the
time prescribed by law.
                                                ENTER:

                                                           MANUEL J. MENDEZ
                                                                           JSC.
Dated: __ January 30, 2014
                                                Manuel J. Mendez
                                                         JS.C.

           Check one:     FINAL DISPOSITION      X NON-FINAL DISPOSITION
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