'SV\ SUPREME COURT-STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- x BERNAR J. PERINI, TRIALIIAS PART: 25 NASSAU COUNTY Plaintiff, -against- Index No: 002067- P&F TRUCKING, INC., SABCO LEASING CORP., OBHA REALTY CORP. and MARY T. SABATELLI, individually and as President and sole shareholder of the Companies. Defendants. -------------------------------------------------------------------- x Papers Read on this Motion: Motion Seq. No: 1 Submission Date: 5/8/09 Order to Show Cause, Emergency Affidavit in Support Affirmation in Support, Affidavit in Support and Exhibits... Affirmation regarding Order to Show Cause for Attachment, dated February 14, 2008......... Affirmation in Op positio n......... This matter is before the cour on the motion by Plaintiff for a pre-judgment order of attchment, fied on February 18 2009 and submitted May 8, 2009. For the reasons set forth below, the Court denies Plaintiffs motion. 1 This Court assumed responsibility for this case, and this motion, on May 8, 2009.
BACKGROUND A. Relief Sought Plaintiff Bernard J. Perini ("Plaintiff' or "Perini") moves for an Order, pursuant to CPLR 99 6201(1) and (3), and 6212, attaching the assets of Defendants P&F Trucking, Inc. P&F"), Sabco Leasing Corp. ("Sabco ) and OBHA Realty Corp. ("OBHA") (collectively Companies ). Defendants oppose Plaintiffs motion. B. The Paries' History In or about 1983, Plaintiff Bernard J. Perini ("Perini") became employed as the general manager ofp&f Trucking, Inc. ("P&F") and Sabco Leasing Corp. ("Sabco ). In 1989, Perini also became the general manager of OBHA Realty Corp. ("OBHA"). Apparently Perini had no written employment agreement with regard to any of these entities. Defendant Mar T. Sabatell ("Sabatell") was the principal ofp&f, Sabco and OBHA. She holds residences in both New York and Florida, but it is believed that her present permanent address is in Florida. In or about 1996, P&F, Sabco and OBHA encountered severe financial problems. Perini alleges that he entered into an oral agreement with Sabatell, pursuant to which a large portion of his salar would be deferred until after Sabatell sold P&F and/or Sabco or their assets. Perini continued to work for the three entities during 1996 and 1997. He then resigned as general manager of P &F and Sabco effective December 31, 1997. He alleges that, as of the date of his resignation, he was due deferred salar of $246 946. Perini continued to work for OBHA through May 31 2002. Perini alleges that he had the same oral agreement regarding deferral of his salar from OBHA as he had with P&F and Sabco. Perini alleges that, as of the date he terminated his employment with OBHA, he was owed $207 000 in deferred salar. Perini alleges that Sabatell entered into similar deferred compensation agreements with other key employees ofp&f, Sabco and OBHA. When these corporations were sold in 2002, all of the employees who had agreed to deferred compensation were allegedly paid in full except Perini. By Order dated July 12 2007 (Austin, J. Prior Order ), in an action titled Bernard Perini v. Mary Sabatell Index Number 2119-, the Cour granted summary judgment in favor
of Sabatell and dismissed the verified complaint. Justice Austin held that Sabatell could not be held personally liable for the compensation, if any, that P&F, Sabco and OBHA owed to Perini. The Court reasoned that there was no basis for Sabatell' s personal liability in light of the facts that 1) there was no evidence before the Court that payment was made from anything other than corporate funds; and 2) the enforcement of any alleged promise that Sabatini made to incur this obligation personally would be bared by the Statute of Frauds. Perini then refied his action seeking compensation from both the Companies and Sabatell. In the present action, Perini alleges that Sabatell sold the assets ofp&j, Sabco, and OBHA in 2002. He claims that the only remaining assets of the Companies are the outstanding monies due from the purchaser for their sale. Perini seeks an Order attaching the assets ofp&f Sabco and OBHA pursuant to CPLR 99 6201(1) and (3), and 6212. He fears that the monies due for the sale of the assets wil be taken out of the Companies and moved into Sabatell' s Florida ban account, thus making the assets judgment proof and precluding Perini from obtaining full compensation. C. The Paries' Positions Perini argues that Sabatell' s propert should be attached, pursuant to CPLR 996201(1) and (3), and 6212, to ensure that he wil be able to collect on any judgment he may receive against one or more of the Companies. Specifically, Perini affirms that an attachment is waranted because there is a "substantiallikelhood that the Companies sole asset, monies due from the prior sale of the Companies' assets, wil be taken out of the Companies and outside of New York " resulting in the Companies' inabilty to satisfy any judgment that Plaintiff may obtain. res judicata Defendants oppose Plaintiff s application, submitting, inter alia that 1) the principle of precludes Plaintiff from relitigating the claim that Sabatell is personally liable for any monies that the Companies owe to Perini, in light of the Prior Order; 2) Plaintiffs application is based on the premise that the Companies may divest themselves of assets to avoid paying a judgment, a proposition that is applicable in every case in which a plaintiff seeks money damages; and 3) Plaintiff canot establish a substantial likelihood of success on the merits, in light ofthe Court' s prior rejection of his argument that Sabatell has personal liabilty for any debt the Companies owe to Perini.
CPLR RULING OF THE COURT 6201 (1) provides that a plaintiff may be granted an order of attchment when the defendant is domiciled outside the state where the issue arises. Attachment may also be granted where the defendant intentionally tries or plans to defraud his adversar by hiding his property removing it from the state. CPLR 9 6201(3); Computer Strategies, Inc. v. Commodore Business Machines, Inc. 105 AD.2d 167 (2d Dept.984). In addition to showing fraudulent intent, a pary seeking an order of attachment must also show a likelihood of success on the merits. CPLR 9 6212(a); Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Development Corp. 118 AD.2d 769, 773 (2d Dept. 1986); Arzu v. Arzu 190 AD.2d 87 (1st Dept.993). Attachment is considered a harsh and extreme remedy and, as such, New York cours strictly construe the relevant statutory provisions against the par who brings the motion. See Kornblum v. Kornblum 34 AD.3d 748, 749 (2d Dept. 2006). Due to the harsh nature of the remedy, cours have held that attachment should only be granted when it is used to accomplish one ofthe following purposes: (1) obtaining jurisdiction over a nonresident; and/or (2) providing adequate securty for a potential judgment against a nonresident where there is an identifiable risk that the defendant wil not be able to satisfy any such judgment. See Cargil, Inc. v. Sabine Trading Shipping Co. 756 F.2d 224 (2d Cir.1985); and Elton Leather Corp. v. First Gen. Resources Co. 138 AD.2d 132 (1 st Dept. 1988). The Court concludes that Perini has not demonstrated his right to an attachment under CPLR 6201 (1) as granting an order of attachment will serve neither purpose identified above. First, New York courts have jurisdiction both over Sabatell and the Companies. Indeed, even though Perini alleges that Sabatell is domiciled in Florida, she has suffcient contacts with New York in light of her ownership of real property here, and the fact that she is the President of the Companies, which are all based in New York. Second, even ifsabatell transferred the profits of the sales ofp&f, Sabco and OBHA to her Florida ban accounts, it does not necessarily follow that Perini would be unable to secure any judgment, if any, he may receive, because Sabatell' New York residences could provide a means for the satisfaction of the judgment. Accordingly, the Cour denies Plaintiff s motion.
All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. The Cour directs counsel for the paries to appear for a conference before the Cour on July 13, 2009 at 9:30 a. ENTER DATED: Mineola, NY June 16, 2009 ls. Ef\EO f) 1\J\;\j II \ l-.,iv 1'1 C\. COLIN U C QUN\'1 's of=r\c B\(