Orders of attachment are governed by Rule 64, F.R. Civ. P.,
which states that they "are available under the circumstances and
in the manner provided by the law of the state in which the
district court is held . . ." "To obtain an order of attachment
[under New York law], the movant must show "that there is a cause
of action, that it is probable that the plaintiff will succeed on
the merits, that one or more grounds for attachment provided in
(N.Y. CPLR] section 6201 exist, and that the amount demanded from
the defendants exceeds all counterclaims known to the plaintiff.'"
Haggiag v. Brown, 728 F. Supp. 286, 293 (S.D.N.Y. 1990) (Leisure,
J.), quoting N.Y. CPLR § 6212(a).
In the April 9, 2001 opinion, the court deferred decision on
this matter until it could make a ruling on the choice of law issue
which would necessarily inform the plaintiff's probability of
success on the merits. Haywin, 137 F. Supp.2d at 437-38. Based
upon the law applicable to this case, and the allegations regarding
the transaction between Azmat and IFIC, Haywin enjoys a probability
of success on the merits under a theory of successor liability.
Furthermore, N.Y. CPLR § 6201(1) is applicable in this case, namely
that IFIC is a nondomiciliary residing without the state, or is a
foreign corporation not qualified to do business in the state."
(Compl. ¶ 2, Brothers Dec. 11, 2000 Aff. ¶ 2.) Finally, in light
of the fact that the property (funds in a bank account) is easily
removed from this jurisdiction, an order of attachment seems
IFIC argues for the first time in its most recently submitted
papers that the bond amount posted by Haywin as security for the
temporary restraining order, $90,000.00, is insufficient to cover
the damage done to IFIC through this attachment. (Def.'s 2nd Mem.
of Law at 2.) IFIC has not submitted an affidavit quantifying the
harm which it is incurring as a result of the temporary restraining
order, or that it would incur should this court enter an order of
attachment under the same terms as the temporary restraining order
issued by the New York state court. IFIC may offer an affidavit,
accompanied by a memorandum of law, substantiating its argument
that the court should modify the terms of the temporary restraining
order. It should make that submission, on notice, before the close
of business on June 22, 2001, and Haywin may respond, if it wishes,
before the close of business on June 29, 2001. If IFIC decides not
to pursue this option, then Haywin should submit, before the close
of business on June 29, 2001, a proposed order of attachment to the
court containing the terms of the earlier temporary restraining
order. In the meantime, the temporary restraining order issued by
the Supreme Court of the State of New York remains in full effect.
IFIC's motion to dismiss is granted as it relates to count one
of the complaint (the third party beneficiary claim) and denied as
it relates to count two (the successor liability claim). If it
desires, Haywin may refile its motion for summary judgment (upon
which the court previously deferred decision, See Haywin, 137 F.
Supp.2d at 433, n. 1), establishing a new schedule for responsive
and reply papers.
IT IS SO ORDERED.