On June 6, 1995, this Court granted Sequa's motion for summary judgment seeking payment on three promissory notes on which Nave acted as co-maker or unconditional guarantor. See Memorandum Opinion and Order, 93 Civ. 7172 (SAS), dated June 22, 1995, at 1. On consent of the parties, the case was referred to Magistrate Judge Bernikow for calculation of damages, including interest, costs, fees, and expenses. See id. at 4. After the Court granted Sequa's motion for summary judgment, Sequa learned that Nave had transferred his interest in real property located in Versailles, Kentucky, in February 1995, and his interest in a Florida condominium on June 10, 1995. On January 22, 1996, Sequa moved for an order compelling Nave to appear for an examination concerning the nature, extent, and location of his assets and the order restraining Nave's assets. On the same day, the Court temporarily granted the order restraining Nave's assets pending the hearing and determination of this motion. See Order to Show Cause, 93 Civ. 7172 (SAS), dated January 22, 1996. On February 2, 1995, after the hearing on the motion, the Court granted Sequa's request compelling Nave to appear for an examination,
and lifted the temporary order restraining any transfers of Nave's assets pending the Court's decision regarding the remainder of Sequa's motion. See Tr. at 7, 22.
To date, the Court is aware that Nave engaged in the following property transactions: 1) On January 31, 1995, Nave sold property in Versailles, Kentucky, for $ 90,000 and, after paying off the mortgage, received approximately $ 18,000; 2) On June 10, 1995, Nave sold a condominium in Florida to Rick Avare, a business associate, whereby Avare assumed the payments on a $ 64,000 mortgage, paid $ 4,000 in maintenance fees, and conveyed to Nave a vacant lot in Charleston, South Carolina, worth about $ 35,000; and 3) On November 1, 1995, Nave sold three parcels of land in Versailles, Kentucky, for $ 705,285 pursuant to an installment sale agreement. In exchange for these properties Nave receives monthly payments of $ 12,514.82 until September 2002, and the sum of $ 20,828.20 on October 1, 2002, for a total payment of $ 1,059,478.26 including principal and interest. The monthly payments Nave receives are equal to the amount owed for the mortgage payments, taxes, and insurance. While Nave only remains responsible for the mortgage payments, he continues to pay the taxes and insurance on behalf of the purchaser. The Court has no knowledge of when the mortgage will be paid off or how much equity Nave has in these properties. See Affidavit of Leonard Nave, 93 Civ. 7172 (SAS), dated January 24, 1996, at 2-4. Furthermore, Nave constructed a house in South Carolina on the lot he received from Avare which is now for sale. See id. at 2.
The relief Sequa seeks is specifically provided for in CPLR 5229.
FRCP 64, which permits courts to grant certain provisional remedies in accordance with state law, states:
During the course of an action, all remedies providing for the seizure of person or property for the purposes of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held . . . . The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated . . . .