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TCF Equipment Finance, Inc. v. Interdimensional Interiors, Inc.

Supreme Court of New York, Second Department

September 18, 2013

TCF Equipment Finance, Inc., appellant,
v.
Interdimensional Interiors, Inc., et al., respondents Index No. 9793/11

Helfand & Helfand, New York, N.Y. (Andrew B. Helfand and Aaron Weissberg of counsel), for appellant.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action, inter alia, for replevin and to recover damages for breach of an equipment lease, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Lane, J.), dated April 3, 2012, which denied its motion pursuant to CPLR 7102 for an order of seizure, and (2), as limited by its brief, from so much of an order of the same court dated June 4, 2012, as, upon reargument, adhered to the determination in the order dated April 3, 2012.

ORDERED that the appeal from the order dated April 3, 2012, is dismissed, as that order was superseded by the order dated June 4, 2012, made upon reargument; and it is further,

ORDERED that the order dated June 4, 2012, is reversed insofar as appealed from, on the law, upon reargument, the order dated April 3, 2012, is vacated, the plaintiff's motion pursuant to CPLR 7102 for an order of seizure is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of an order of seizure; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The defendant Interdimensional Interiors, Inc. (hereinafter Interdimensional), leased equipment from the plaintiff pursuant to an equipment lease. After Interdimensional defaulted in making its payments under the lease, the plaintiff commenced this action seeking, inter alia, replevin of the leased equipment and to recover damages for breach of the lease. After commencing the action, the plaintiff moved for an order of seizure pursuant to CPLR 7102. The Supreme Court denied the plaintiff's motion, finding, inter alia, that the plaintiff failed to demonstrate that it would suffer irreparable injury if the order was not issued. The court then granted the plaintiff's motion for leave to reargue and, upon reargument, adhered to its original determination.

Upon reargument, the Supreme Court should have granted the plaintiff's motion for an order of seizure pursuant to CPLR 7102. Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim (see Americredit Fin. Serv., Inc. v Decoteau, 103 A.D.3d 761, 762; Siemens Med. Solutions USA, Inc. v Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 A.D.3d 620, 621; Astrep Serv. Corp. v Banco Popular N. Am., 19 A.D.3d 341; Stoll Am. Knitting Mach. v Creative Knitwear Corp., 5 A.D.3d 586, 586-587; Zweng v Thompson, 283 A.D.2d 641). Here, the plaintiff made such a showing (see Siemens Med. Solutions USA, Inc. v Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 A.D.3d at 621; Theodore & Theodore Assoc. v A.I. Credit Corp., 172 A.D.2d 824). Contrary to the court's determination, the plaintiff was not required to demonstrate that it would suffer irreparable injury in order to obtain an order of seizure pursuant to CPLR 7102.

Accordingly, the matter must be remitted to the Supreme Court, Queens County, for the entry of an order of seizure.

DILLON, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.


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