Great White Whale Advertising, Inc. v. First Festival Productions

• Decision Date: 16 April 1981
• Citation: 438 N.Y.S.2d 655,81 A.D.2d 704
• Parties: GREAT WHITE WHALE ADVERTISING, INC., Respondent, v. FIRST FESTIVAL PRODUCTIONS et al., Defendants. Appeal of VECTOR MANAGEMENT, LTD., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

438 N.Y.S.2d 655

81 A.D.2d 704

GREAT WHITE WHALE ADVERTISING, INC., Respondent, v. FIRST FESTIVAL PRODUCTIONS et al., Defendants Appeal of VECTOR MANAGEMENT, LTD., Appellant.

Supreme Court, Appellate Division,

Third Department.

April 16, 1981.

Kohn, Bookstein & Karp, Albany (Raymond S. Zierak, Albany, of counsel), for appellant.

Hinman, Straub, Pigors & Manning, Albany (Leslie M. Apple, Albany, of counsel), for respondent.

Before SWEENEY, J. P., and CASEY, YESAWICH, WEISS and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered December 1, 1980 in Albany County, which denied a motion by Vector Management, Ltd. to vacate an ex parte attachment order.

On August 23, 1980, a rock concert was held in Ontario, Canada, under promotion and production by defendant First Festival Productions (First Festival), a Canadian limited partnership comprised of two Canadian corporations in which the individual defendants Taylor and Grossman apparently are officers or employees. Plaintiff Great White Whale Advertising, Inc. (GWW) is a New York corporation which rendered advertising and promotion services for the concert to First Festival for which it claims $78,000 is due. Without having commenced an action to recover that sum, GWW, on August 25, 1980, obtained an ex parte order of attachment of funds from concert ticket sales in the possession of Ticketron, a subsidiary of a Delaware corporation with offices in New York City. The grounds for the attachment were that defendants were nondomiciliaries or foreign corporations not qualified to do business in New York (CPLR 6201, subd. 1). A levy was made by the Sheriff of the City of New York.

Vector Management, Ltd. (Vector), a Canadian corporation, alleges that pursuant to written agreement dated August 19, 1980, it agreed to loan First Festival $325,000 for promotion and production of the concert. As security for the loan, First Festival executed and delivered to Vector an assignment of specified property and its receivables then or thereafter to become due, including proceeds from concert tickets sold by Ticketron. Financing statements were registered with the appropriate Canadian agencies in order to perfect the security interest and notification of the assignment was mailed to Ticketron directing that payment be made directly to Vector's attorneys.

On September 3, 1980, eight days after the levy, GWW moved to confirm the attachment pursuant to CPLR 6211 (subd. Vector, by order to show cause granted September 19, 1980, moved to vacate the order of attachment and set aside the sheriff's levy on the grounds (1) it was void by reason of the failure of GWW to move for confirmation within five days after the levy (CPLR 6211, subd. (2) defendants had no interest in the levied funds because of Vector's security interest therein, and (3) the required undertaking (CPLR 6212, subd. was not filed. Special Term denied confirmation to GWW on the ground its motion was untimely, and also denied Vector's motion to vacate holding that the court lacked jurisdiction over Vector, a foreign corporation not authorized to do business in this State, citing section 210 of the General Corporation Law. It appears that no order was entered on the GWW motion. Vector has appealed to this court from the order denying its motion for vacatur of the attachment.

Subsequent to the taking of this appeal, GWW obtained a new ex parte order of attachment causing another levy to be made on December 1, 1980, and moved the same day to confirm this second order of attachment.

By order entered January 7, 1981, this court granted a motion by Vector and stayed all further proceedings in connection with the second order of attachment and levy thereunder, including the hearing and determination of the motion to confirm that attachment order.

GWW argues that this appeal is moot because having failed to timely move to confirm its order of attachment and levy, CPLR 6211 (subd. effects a self-executing vacatur. This contention is incorrect. CPLR 6211 (subd. states in part:

If plaintiff fails to make such motion within the required period, the order of attachment and any levy thereunder shall have no further effect and shall be vacated upon motion. (Emphasis added.)

The failure of GWW to have entered an order upon Special Term's denial of its motion to confirm results in an effective attachment and levy now rendered ineffective, but still not vacated. Neither can GWW be heard to claim that the second order of attachment impliedly produced vacatur of the first order. Ostensibly, the second order was granted in reliance upon Special Term's initial determination and the erroneous assumption the first order had been vacated. However, absent an order of vacatur, there is no vacatur. Since Vector's motion to vacate was denied and the order entered thereon made the subject of this...