party whose property is subject to the attachment, must once again demonstrate that the foregoing requirements are met, and also demonstrate a need for continuing the levy. CPLR §§ 6211(b) and 6223(b).
As to the first and second requirements, i.e., that a claim for a money judgment exists and that the movant is likely to succeed on the merits, "the court must give the plaintiff the benefit of all the legitimate inferences that can be drawn from the facts." National Bank & Trust Co. v. J.L.M. International, Inc., 421 F. Supp. 1269, 1272 (S.D.N.Y. 1976) (quoting Marklin v. Drew Properties Corp., 280 F. Supp. 176, 179 (S.D.N.Y. 1967)).
Opal has presented sufficient evidence by affidavits and other written evidence that it loaned Istim approximately $ 2 million which has not been fully repaid. Opal has also supplied a computer print-out from Istim's former office, which indicates an unpaid balance on the Opal loan. See Reply Affidavit of Tsvi Katsir in Support of Motion to Confirm Attachment ("Reply Aff.") at PP 3-10; Katsir Aff. at P 7. In addition, Opal is in possession of the drafts tendered from Istim in exchange for the loan. Finally, Istim has failed to offer any proof that it has repaid this loan, such as cancelled checks or any other form of payment. Thus, Opal has fulfilled the first two requirements of CPLR § 6212(a).
In determining whether the fourth requirement, that "the amount demanded from the defendant exceeds all counterclaims known to the plaintiff" is met, courts are to examine only the amount of the counterclaims that the plaintiff concedes are just. See City of New York v. Citisource, Inc., 679 F. Supp. 393 (S.D.N.Y. 1988); Mishkin v. Kenney & Branisel, Inc., 609 F. Supp. 1254, 1256 n. 5 (S.D.N.Y. 1985), aff'd 779 F.2d 35 (2d Cir. 1985); Shearson Hayden Stone, Inc. v. Scrivener, 480 F. Supp. 256 (S.D.N.Y. 1979), rev'd on other grounds. See also American Jerex Co. v. Universal Aluminum Extrusions, Inc., 340 F. Supp. 524 (E.D.N.Y. 1972) (requirement of CPLR § 6212(a) that papers on a motion for an order of attachment must show "the amount demanded from defendant above all counterclaims known to plaintiff is construed to mean only those counterclaims that a plaintiff is willing to concede as just;" existence of a pending counterclaim which is contested does not defeat an attachment). Because Opal contends that Istim's counterclaims are entirely without merit, this requirement is satisfied. Reply Aff. at P 11.
Thus, the motion to confirm turns on whether Opal has satisfied the third requirement. To fulfill this requirement, CPLR § 6201(3) requires proof of two elements: (i) that the defendant either is about to or has assigned, disposed of, encumbered or secreted property, or removed it from the state, and (ii) that the defendant has acted or will act with the intent to defraud his or her creditors, or to frustrate the enforcement of a judgment that might be rendered in plaintiff's favor.
A. Disposal of Assets
The first element need not be demonstrated by actual proof of disposition or secretion of property. 7A Weinstein-Korn-Miller, New York Civil Practice P 6201.12 (1994 ed.) ("CPLR"). The transfer or disappearance of an abnormal amount of property will suffice. Tannenbaum v. Gottlieb, 14 A.D. 105, 43 N.Y.S. 469 (1st Dept. 1897). The burden is on the plaintiff to demonstrate that the defendant has begun the process of removing its assets. Dickey v. Findeisen & Kropf Mfg. Co., 177 A.D. 861, 164 N.Y.S. 989 (1st Dept. 1917).
Opal has satisfied this prong of the test. Opal claims, and Istim does not dispute, that Istim has no substantial assets in the United States other than the funds at issue previously in the bank account. In two letters dated August 29, 1994 and another dated September 7, 1994, Istim requested Bank Leumi to transfer the balance of its funds to a bank in the Netherlands. See Compl. Ex. "B." Thus, Opal has made a prima facie showing of Istim's preparation to remove its remaining assets from this jurisdiction.
B. Intent to Defraud Creditors or to Frustrate Enforcement of a Judgment
The second requirement under CPLR § 6201(3) is that the plaintiff show that the defendant is about to assign, encumber, secrete or remove property from the state with the intent to defraud creditors.
A party relying upon a right to a remedy against another based upon the defendant's alleged commission of a fraud, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt, in order to maintain his claim.
O'Rourke v. Rankin, 193 A.D. 494, 497, 184 N.Y.S. 845 (2d Dept. 1920) (quoting Morris v. Talcott, 96 N.Y. 100, 107 (1884)). More precisely, "the moving papers must contain evidentiary facts as opposed to conclusions establishing the fraud." Marina B. Creation S.A. v. de Maurier, No. 86 Civ. 9748, 1988 U.S. Dist. LEXIS 1096, slip op. (S.D.N.Y. Feb. 8, 1988) (Sweet, J.).
While the defendant is entitled to a presumption of innocence, Morris, 96 N.Y. at 107, "a court is not required to give credence to a story so inherently impossible as to leave no doubt that it is not true." Arzu v. Arzu, 190 A.D.2d 87, 90, 597 N.Y.S.2d 322 (1st Dept. 1993). Furthermore, "it is not always practicable to establish by proof the existence of a fraudulent intent . . . even when in reality it exists. Direct proof of the fact can rarely be obtained, and when it is established it must ordinarily be inferred from the circumstances." Stevens v. Middleton, 26 Hun. 470, 472 (1st Dept 1882). By submitting affidavits which make "a prima facie evidentiary showing of secretion of assets by defendants in fraud of creditors, and particularly in fraud of plaintiff," Kneapler v. Braufman, 266 A.D. 756, 41 N.Y.S.2d 261 (2d Dept. 1943), the plaintiff has fulfilled his burden of proof. The burden then shifts to the defendant to explain the actions or to rebut the plaintiff's allegations. Stewart v. Lyman, 62 A.D. 182, 186, 70 N.Y.S. 936 (1st Dept. 1901)
In the instant case, Opal has presented six acts by Istim evidencing an intent to defraud creditors:
i. Istim's removal of its assets from within this jurisdiction;