Opinion
2000-08204, 2001-02864
Argued December 4, 2001.
December 24, 2001.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (DiBlasi, J.), entered July 18, 2000, which denied her motion for an order of attachment, and (2) an order of the same court entered March 7, 2001, which denied her motion for leave to renew.
Patrick J. Carr, Scarsdale, N.Y., for appellant.
Anthony J. Caputo, P.C., White Plains, N.Y. (Michael Fuller Sirignano of counsel), for respondent Elise B. Browne.
Frankel Abrams, New York, N.Y. (Stuart E. Abrams of counsel), for respondents Patricia E. Benedict and Verna B. Neilson.
Eaton Van Winkel, New York, N.Y. (Robert K. Gross of counsel), for respondent Elena A. Benedict-Smith.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, STEPHEN G. CRANE, JJ.
ORDERED that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
To obtain an order of attachment under CPLR 6201(3), the 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 (see, Arzu v. Arzu, 190 A.D.2d 87, 91; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 772). The moving papers must contain evidentiary facts, as opposed to conclusions, proving the fraud (see, Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra; see also, Rothman v. Rogers, 221 A.D.2d 330; Rosenthal v. Rochester Button Co., 148 A.D.2d 375, 376). In addition to proving fraudulent intent, the plaintiff must also show probable success on the merits of the action (see, CPLR 6212[a]; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra, at 773; Computer Strategies v. Commodore Business Machs., 105 A.D.2d 167, 173).
Here, the Supreme Court properly denied the plaintiff's motion for an order of attachment, as there has been an insufficient showing that the defendants engaged in any conduct which would satisfy the requirements of CPLR 6201(3).
The plaintiff's remaining contentions are without merit.
RITTER, J.P., FRIEDMANN, FEUERSTEIN and CRANE, JJ., concur.