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October 29, 1993



The opinion of the court was delivered by: THOMAS J. MCAVOY



 On August 17, 1993, agents of the Internal Revenue Service ("IRS") seized four thoroughbred horses allegedly owned by the plaintiffs as a levy for back taxes owed by the Kinderhill Investment Company, Inc. ("Kinderhill Investment"). Three of the horses currently go by the names of M.J. Bean, Senorita Constanza, and Malicious (formerly Hardly Risen), and the fourth horse is an unnamed philly. Plaintiffs allege that Kinderhill Investment has no interest in these horses with the possible exception of M.J. Bean. Plaintiff Constance Moss claims a one-third ownership interest in M.J. Bean and an entire ownership interest in Senorita Constanza, Malicious, and the unnamed philly, and claims that these interests are superior to the federal tax liens. The United States claims that Kinderhill Investment was the owner of the horses when the federal tax liens arose.


 26 U.S.C. § 7421 prohibits suits to restrain assessment or collection by the Internal Revenue Service. However, 26 U.S.C. § 7421(a) provides several exceptions, including suits for wrongful levy brought under 26 U.S.C. § 7426. Specifically, § 7426(b)(1) allows a court to enjoin a levy or sale if it determines that the plaintiff has rights in the property superior to the federal tax liens and the levy or sale would irreparably injure those rights.

 In order to obtain a preliminary injunction in the Second Circuit, the movant must make a showing of: (1) irreparable harm; and either (2) likelihood of success on the merits; or (3) sufficiently serious questions going to the merits to make them a fair ground for litigation; and (4) a balance of hardships tipping decidedly in favor of the movant. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Irreparable harm "means an injury for which a monetary award cannot be adequate compensation." Jackson Dairy at 72. It is to be further kept in mind that a preliminary injunction is "an extraordinary and drastic remedy which should not be routinely granted." Medical Soc. of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977).

 Fed.R.Civ.P. 64 holds that all remedies providing for seizure of property for the purposes of securing a judgment ultimately sought in the action must be carried out in the manner provided by the law of the state where the district court sits. Fed.R.Civ.P. 64(1) says that the state law shall be used unless a United States statute prevails. No evidence has been presented to show that any U.S. statute prevails in this case, and so it is proper to follow the New York CPLR.

 New York CPLR § 7109(a) serves as a basis for granting a preliminary injunction. CPLR § 7109(a) states that "where the chattel is unique, the court may grant a preliminary injunction or temporary restraining order that the chattel shall not be removed from the state, transferred, sold, pledged, assigned or otherwise disposed of until the further order of the court." Plaintiffs submit that the horses involved are unique, and this court agrees in light of precedent from New York State courts which have previously found such items as works of art, historical artifacts, perfume ingredients, and certain cars to be unique. See, e.g., Staff v. Hemingway, 47 A.D.2d 709, 365 N.Y.S.2d 84 (1975) (finding paintings unique); Onondaga Nation v. Thacher, 29 Misc. 428, 61 N.Y.S. 1027 (1899) (finding wampum belts unique); Chabert v. Robert & Co., 273 App. Div. 237, 76 N.Y.S.2d 400 (1948) (finding oils used to make perfumes unique); Giordano v. Grand Prix Sales, Service, Restoration Co., 113 Misc. 2d 395, 449 N.Y.S.2d 127 (1982) (finding a 1967 Ferrari unique).

 A. Irreparable Harm

 As for irreparable harm, plaintiffs have asserted that sale of the horses would cut off any of their alleged ownership interests permanently. Plaintiffs stated that their ultimate goal is to get their horses back and asserted that this goal would be obviously frustrated by the sale of the horses to a third party. Because their goal is to have the horses returned to them, and the horses are unique, money damages would not be an adequate remedy. Furthermore they note that because of the difficulty in assessing the fair market value of the horses, and the inability of the IRS to sell the horses with thoroughbred certification, if the sale was to occur, they would be unlikely to ever receive the market value of their property even upon the award of a money judgment. Thus, the plaintiffs have shown irreparable harm.

 B. Serious Questions Regarding the Merits or Likelihood of Success on the Merits

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