The opinion of the court was delivered by: JOHN S. MARTIN, JR.
JOHN S. MARTIN, Jr., District Judge:
On July 26, 1986, Averell Harriman died, leaving numerous descendants and an estate ultimately valued at approximately $ 65 million. Plaintiffs, trustees of several inter vivos trusts established by Averell Harriman (the "Harriman Trusts") and limited partnerships established for the purpose of investing the Harriman Trusts (the "Harriman Partnerships"), filed this action against defendants, who are present and former trustees of, general partners in and advisors to the Harriman Trusts and Partnerships, seeking recovery of over $ 30 million in damages. Plaintiffs allege, inter alia, that defendants breached their fiduciary duties, were grossly negligent, committed professional malpractice, and violated the terms of the limited partnership agreements and trust instruments. Plaintiffs further allege that certain defendants, including Clark M. Clifford, committed fraud and violated the Racketeer Influenced and Corrupt Organizations Act (RICO).
Currently before the Court is plaintiffs' application by order to show cause for an order of attachment against the New York assets and property belonging to defendants Pamela Digby Churchill Harriman ("Harriman") and Clark M. Clifford ("Clifford").
For the reasons stated below, the application is DENIED.
Pursuant to Fed. R. Civ. P. 64, the attachment remedy contained in Section 6201 of New York's Civil Practice Law and Rules ("CPLR") is available to plaintiffs. Section 6201 provides in relevant part:
An order of attachment may be granted in any action . . . where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when:
1. the defendant is a nondomiciliary residing without 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 favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts . . .
Plaintiffs contend that, since it is conceded that Harriman and Clifford are nondomiciliaries, they have satisfied the statutory bases on which the Court may issue a writ of attachment, and they need do no more. Defendants Harriman and Clifford, both of whom have submitted to the jurisdiction of the Court, contend that because attachment is not needed in aid of jurisdiction, it should not be granted unless there is evidence that they have or are about to engage in fraudulent transfers of assets. Since plaintiffs' counsel has, with commendable candor, stated that he is making no claim of fraudulent transfers of assets, the issue presented on this motion is solely one of law.
New York law clearly recognizes that § 6201(1) serves "'two independent purposes: obtaining jurisdiction over and securing judgments against nondomiciliaries residing without the state.'" Elton Leather Corp. v. First General Resources Co., 138 A.D.2d 132, 529 N.Y.S.2d 769, 771 (A.D. 1st Dept. 1988) (quoting ITC Entertainment, Ltd. v. Nelson Film Partners, 714 F.2d 217, 220 (2d Cir. 1983)). See also Joseph M. McLaughlin, Practice Commentaries (1983), CPLR § 6201, C6201:2 (McKinney Vol.7B West Supp. 1994) ("It should be emphasized that when the defendant is a nondomiciliary-nonresident or an unlicensed foreign corporation, the attachment serves the additional purpose of giving the plaintiff security.").
Where the defendant is a resident of the state and, therefore, subject to the jurisdiction of the Court, attachment is only permitted upon a showing that the defendant is attempting to dispose of his assets in order to frustrate the ability of the plaintiff to collect any judgment that might ultimately be obtained. Thus, the question presented is whether, simply because the parties who have submitted to the ...