Stines v. Hertz Corp.
| Decision Date | 23 November 1964 |
| Citation | 254 N.Y.S.2d 903,22 A.D.2d 823 |
| Parties | Edward F. STINES, Jr., an infant, etc., et al., Respondents, v. The HERTZ CORPORATION, etc., et al., Defendants, and Iowa Car Rental, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hurley, Kearney & Lane, Brooklyn, for appellant; Denis M. Hurley, Brooklyn, of counsel.
Jerome Edelman, Brooklyn, for respondent; Benjamin H. Siff, New York City, of counsel.
Before BELDOCK, P. J., and UGHETTA, KLEINFELD, CHRIST and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injury sustained by the infant plaintiff in the State of Iowa, in which a warrant of attachment was issued, the defendant Iowa Car Rental, Inc. appeals from so much of an order of the Supreme Court, Kings County, dated March 18, 1964, as: (1) denied its motion, pursuant to CPLR § 6223, to vacate the warrant upon the ground that it has no property in this State and that there is no debt due to it in this State, and upon the further ground that the affidavits and complaint on which the warrant was issued were insufficient as a matter of law; (2) denied its motion to direct the Sheriff of the City of New York to desist from further proceedings with respect to the attempted levy under the warrant; (3) denied its motion, pursuant to CPLR Rule 3211 (subd. (a), pars. 8, 9), to vacate the service of the summons and complaint upon it; (4) denied its motion, pursuant to CPLR § 2221, to vacate the ex parte order, dated December 16, 1963, extending for one year the time of the plaintiffs and the Sheriff to act under said warrant; (5) denied its motion to reduce the amount of the attachment; and (6) granted plaintiffs' cross motion to serve supplemental affidavits in support of the warrant of attachment and to serve an amended complaint.
Order, insofar as appealed from, reversed on the law, without costs; motions of the defendant Iowa Car Rental, Inc. granted to the extent of vacating the warrant of attachment, directing the Sheriff of the City of New York to refrain from taking any further action thereunder, vacating the said ex parte order, and vacating the service of the summons and complaint upon the said defendant; and plaintiffs' cross motion, insofar as it seeks to serve an amended complaint upon said defendant, denied without prejudice to such further actions or proceedings as plaintiffs may be advised.
While the court is not required to decide the merits of a controversy on a motion to vacate an attachment, 'the attachment papers must contain evidence from which the court can determine that the ultimate facts alleged in the complaint can be substantiated' (Krellberg v. Gregory, 10 A.D.2d 824, 199 N.Y.S.2d 150). Where the complaint and affidavits fail to establish a prima facie cause of action, or where they clearly establish that 'the plaintiff must ultimately be defeated,' the attachment must be vacated (American Reserve Ins. Co. v. China Ins. Co., 297 N.Y. 322, 325, 79 N.E.2d 425, 426).
The affidavits, the original complaint and proposed amended complaint, and the exhibits offered on the instant motions establish that on May 24, 1963, the said defendant, Iowa Car Rental, Inc. rented a car to one Edwin A. Does. The rental contract provided, inter alia, that the vehicle shall not be used by any person except the renter, a member of the renter's immediate family, the renter's employer, or an employee of the renter in the course of such employee's regular employment. The affidavit of the infant plaintiff states that on May 26, 1963, in the State of Iowa, at the invitation of one Roy, the infant plaintiff and three friends rode in the car which was being operated by Roy. It does...
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Ford Motor Credit Co. v. Hickey Ford Sales, Inc.
...must ultimately be defeated are: American Reserve Ins. Co. v. China Ins. Co., 297 N.Y. 322, 325, 79 N.E.2d 425; Stines v. Hertz Corp., 22 A.D.2d 823, 254 N.Y.S.2d 903, affd. 16 N.Y.2d 605, 261 N.Y.S.2d 59, 209 N.E.2d 105; Packer v. Caesars World, 54 A.D.2d 676, 387 N.Y.S.2d 851; AMF Inc. v.......
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...P.L.R. § 6223; Stines v. Hertz Corp., 42 Misc.2d 443, 248 N.Y.S.2d 242 (Sup.Ct., Kings Co. 1964), reversed on other grounds, 22 A.D.2d 823, 254 N.Y.S.2d 903 (1964), aff'd, 16 N.Y.2d 605, 261 N.Y.S.2d 59, 209 N.E.2d 105 In his first cause of action, plaintiff alleges that he is entitled to d......
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