54 Misc.2d 277, Cherno v. Bank of Babylon

Citation54 Misc.2d 277, 282 N.Y.S.2d 114
Party NameCherno v. Bank of Babylon
Case DateJuly 07, 1967

Page 277

54 Misc.2d 277

282 N.Y.S.2d 114

Isidore CHERNO, as Assignee for the Benefit of Creditors of Elwood Auto Parts, Inc., Plaintiff,

v.

BANK OF BABYLON, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

July 7, 1967.

Page 278

[282 N.Y.S.2d 116] Matthew Feinberg, Hempstead, for plaintiff.

Michael J. Ryan, Babylon, for defendant.

MEMORANDUM

BERNARD S. MEYER, Justice.

Plaintiff as assignee for the benefit of creditors of Elwood Auto Parts, Inc., sues, by leave of court, for the conversion by defendant bank of assets of the assignor. The complaint sets forth three causes of action: the first is for the conversion; the second, for punitive [282 N.Y.S.2d 117] damages; and the third, for violation of Penal Law, § 1433. Plaintiff moves for summary judgment and for the purposes of this motion concedes the validity of the security agreement held by the bank. That agreement gave the bank the right in the event of default '(a) to declare the Note and all Obligations due and payable * * * without notice or demand; (b) to enter the * * * premises * * * where any of the Collateral may be located and take and carry away the same * * * with or without legal process'. The undisputed facts are that the assignor was in default under the security agreement on May 9, 1966, that the assignment was made on May 26, 1966 and filed on May 27, 1966 and an order made on May, 31, 1966, by the Supreme Court, Suffolk County, authorizing the assignee, upon filing bond and after notice to creditors, to sell the assignor's physical assets, that on June 2, 1966 an auctioneer employed by the assignee visited the bank and informed the bank's senior vice-president and comptroller that the assignment had been made (EBT, pp. 39, 41), that up to that point the bank had taken no steps to seize the collateral other than attempting to contact the borrower (EBT, pp. 41--42), that on June 2, 1966 the key to the premises leased by the assignor was in the assignee's possession and on the afternoon of that day was used by one of the auctioneer's employees to let the bank's senior vice-president into the premises so that he could view the assets in question, that on June 3, 1966 the bank's

Page 279

employees (EBT, pp. 49, 54, 57) entered the premises of the assignor at the direction of the senior vice-president (EBT, p. 49) and removed the assets in question (EBT, pp. 46--47), that admittance of the bank's employees to the premises was obtained by means of a key which was not received from anyone of the assignor's firm, the assignee, auctioneer or landlord (EBT, pp. 62--63) but was obtained from a representative of a locksmith (Kozlowski affidavit of March 17, 1967), and that the assets seized by the bank were thereafter sold by the bank (EBT, p. 61).

Since plaintiff has presented no evidence of 'actual physical damages' to the assets, Penal Law, § 1433 does not apply, Polychrome Corp. v. Lithotech Corp., 4 A.D.2d 968, 969, 168 N.Y.S.2d 346, 347. In the exercise of the discretion granted by CPLR 3212(b), defendant is, therefore, granted summary judgment dismissing the third cause of action. On the first and second causes of action, plaintiff's motion for summary judgment is denied for the reasons hereafter set forth, but since plaintiff's concession as to the validity of the security agreement was for the purposes of its own motion only, and there is, in view of the blanks in the security agreement, a triable issue concerning its validity, defendant's request for summary judgment on these causes...

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15 practice notes
  • 624 A.2d 85 (N.J.Super.A.D. 1993), Slowinski v. Valley Nat. Bank
    • United States
    • New Jersey Superior Court of New Jersey
    • May 11, 1993
    ...899, 900-901 (1938) (no breach of peace where garage doors are open and creditor enters and tows car away); Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114, 119-20 (N.Y.Sup.Ct.1967) (no breach of peace despite unauthorized entry into debtor's business premises), aff'd, 29 A.D.2d......
  • 378 N.W.2d 81 (Minn.App. 1985), CX-85-865, Bloomquist v. First Nat. Bank of Elk River
    • United States
    • Minnesota Court of Appeals of Minnesota
    • December 3, 1985
    ...Global Casting Industries, Inc. v. Daley-Hodkin Corp., 105 Misc.2d 517, 432 N.Y.S.2d 453 (1980); Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (Sup.Ct.Nassau Co.1967) aff'd 29 A.D.2d 767, 288 N.Y.S.2d 862 (2d Dept.1968); North v. Williams, 120 Pa. 109, 13 A. 723 (1888); Harris......
  • 291 S.E.2d 383 (W.Va. 1982), 15347, General Elec. Credit Corp. v. Timbrook
    • United States
    • West Virginia United States State Supreme Court of Appeals of West Virginia
    • May 14, 1982
    ...Corporation and Ms. Timbrook reached a settlement, and General Electric was dismissed from this action. [2] Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (1967); Morris v. First National Bank and Trust Co., 21 Ohio St.2d 25, 29, 254 N.E.2d 683, 686-687 (1970); Harris Truck and......
  • 750 P.2d 1024 (Kan. 1988), 60726, Riley State Bank of Riley v. Spillman
    • United States
    • Kansas United States State Supreme Court of Kansas
    • February 19, 1988
    ...entry into a business generally causes less concern. White & Summers, Uniform Commercial Code § 26-6; see Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (1967), aff'd 29 A.D.2d 767, 288 N.Y.S.2d 862 (1968). However, we view breaking and entering either the residence or busi......
  • Request a trial to view additional results
15 cases
  • 624 A.2d 85 (N.J.Super.A.D. 1993), Slowinski v. Valley Nat. Bank
    • United States
    • New Jersey Superior Court of New Jersey
    • May 11, 1993
    ...899, 900-901 (1938) (no breach of peace where garage doors are open and creditor enters and tows car away); Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114, 119-20 (N.Y.Sup.Ct.1967) (no breach of peace despite unauthorized entry into debtor's business premises), aff'd, 29 A.D.2d......
  • 378 N.W.2d 81 (Minn.App. 1985), CX-85-865, Bloomquist v. First Nat. Bank of Elk River
    • United States
    • Minnesota Court of Appeals of Minnesota
    • December 3, 1985
    ...Global Casting Industries, Inc. v. Daley-Hodkin Corp., 105 Misc.2d 517, 432 N.Y.S.2d 453 (1980); Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (Sup.Ct.Nassau Co.1967) aff'd 29 A.D.2d 767, 288 N.Y.S.2d 862 (2d Dept.1968); North v. Williams, 120 Pa. 109, 13 A. 723 (1888); Harris......
  • 291 S.E.2d 383 (W.Va. 1982), 15347, General Elec. Credit Corp. v. Timbrook
    • United States
    • West Virginia United States State Supreme Court of Appeals of West Virginia
    • May 14, 1982
    ...Corporation and Ms. Timbrook reached a settlement, and General Electric was dismissed from this action. [2] Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (1967); Morris v. First National Bank and Trust Co., 21 Ohio St.2d 25, 29, 254 N.E.2d 683, 686-687 (1970); Harris Truck and......
  • 750 P.2d 1024 (Kan. 1988), 60726, Riley State Bank of Riley v. Spillman
    • United States
    • Kansas United States State Supreme Court of Kansas
    • February 19, 1988
    ...entry into a business generally causes less concern. White & Summers, Uniform Commercial Code § 26-6; see Cherno v. Bank of Babylon, 54 Misc.2d 277, 282 N.Y.S.2d 114 (1967), aff'd 29 A.D.2d 767, 288 N.Y.S.2d 862 (1968). However, we view breaking and entering either the residence or busi......
  • Request a trial to view additional results