The opinion of the court was delivered by: Sweet, District Judge.
Plaintiffs in Morin v. Trupin and Ahmed v. Trupin move for
an order of attachment against all property in New York State
owned by defendant Barry H. Trupin ("Trupin"), RRI Realty Corp.
("RRI Realty"), and other defendants in these actions
identified in the margin.*fn1 In addition, plaintiffs seek
to restrain the law firm of Summit Rovins & Feldesman
("Summit"), formerly counsel to Trupin, RRI Realty, and certain
other defendants in these actions, from foreclosing on a
mortgage it holds on a property, known as Dragons Head, that is
owned by defendant RRI Realty. For the reasons stated below,
the motions are denied, subject to renewal upon further
The Parties, the Actions and the Facts
The underlying disputes and principal parties which are the
subject of these lawsuits are recounted in prior opinions of
the court, familiarity with which is assumed. In brief,
plaintiffs are individual investors in unsuccessful limited
partnerships formed to own and operate commercial office space
properties. Trupin and numerous other defendants are alleged to
have induced the plaintiffs to invest in the limited
partnerships by misrepresenting the soundness of the investment
properties in partnership offering materials and, thereafter,
to have looted and misappropriated limited partnership funds by
exercising control over the general partners and managing
agents of the limited partnerships.
The present motions seek an order of attachment upon a
multi-million dollar residential property, Dragons Head, which
is unrelated to the limited partnership investment properties
but which is an asset of one of the defendants, RRI Realty.
Mildred Trupin, Trupin's mother, is the president of RRI
Realty. Defendant BWT Corp. ("BWT") allegedly owns RRI Realty,
and BWT in turn is owned by The Tara Jill Trupin 1983-O Trust
("1983-O Trust"), of which Trupin was trustee at time of its
formation in 1983.
RRI Realty purchased Dragons Head in 1979. RRI Realty has held
title to the property since then. Plaintiffs allege on
information and belief that the property is one of the few
assets that remain available to satisfy the judgment they hope
to obtain in these actions.
On March 5, 1990, Summit filed a motion returnable March 9,
1990 seeking leave to withdraw as counsel to the noted
defendants in these actions, on grounds of non-payment of fees
for past services rendered. Upon the hearing on that motion,
plaintiffs opposed the withdrawal motion and cross-moved for an
order of attachment against the defendants and for an
injunction restraining Summit from foreclosing on its mortgage.
Additional time was granted to the plaintiffs, defendants and
Summit to file papers bearing on the attachment issues,
resulting in further briefing and numerous submissions by
plaintiffs and defendants up to May 1. Over plaintiffs'
opposition, withdrawal was granted to Summit as against the
defendants by order of March 30, 1990.
These motions for an order of attachment for security purposes
are governed by Article 62 of the New York Civil Practice Law
and Rules.*fn3 A threshold requirement is that plaintiff
"show, by affidavit and such other written evidence as may be
submitted, that there is a cause of action [and] that it is
probable that the plaintiff will succeed on the merits." CPLR §
6212(a). In addition, the plaintiff must satisfy at least one
of the statutory grounds for attachment set forth in CPLR §
6201. The particular grounds for attachment urged here are
those stated in subdivisions (1) and (3) of that provision:
(1) the defendant is a non-domiciliary residing without the
state, or is a foreign corporation not qualified to do business
in the State; or . . .
(3) the defendant, with intent to defraud his creditors or
frustrate the enforcement of a judgment that might be rendered
in plaintiff's favour, has assigned, disposed of, encumbered or
secreted property, or removed it from the state or is about to
do any of these acts . . . .
Although it might be thought that the warrant for attachment
under the former ground of non-residence is limited to the
purpose of obtaining quasi in rem jurisdiction (and not
security) in circumstances in which the party against whom
attachment is sought might not otherwise be subject to in
personam jurisdiction, the interpretation of the non-residence
provision is to the contrary. See ITC Entertainment, Ltd. v.
Nelson Film Partners, 714 F.2d 217, 220 (2d Cir. 1983) (the
"statute continues to countenance attachments against
nonresidents when appropriate to secure the judgment, even when
unnecessary to secure jurisdiction") (citing New York cases).
Thus, plaintiffs may rely on § ...