Halse v. Hussain

• Decision Date: 01 April 2021
• Docket Number: 531116
• Citation: Halse v. Hussain, 193 A.D.3d 1140, 147 N.Y.S.3d 148 (N.Y. App. Div. 2021)
• Parties: Edward HALSE, as Administrator of the Estate of Amanda Halse, Deceased, Respondent, v. Shahed HUSSAIN, also Known as Malik Shahid Hussain, Malik Shahid Shakir Hussain, Malik Hussain, Malik Riaz Hussain, Mike Hussain and Mike Begum, Individually and Doing Business as Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1140

147 N.Y.S.3d 148

Edward HALSE, as Administrator of the Estate of Amanda Halse, Deceased, Respondent,

v.Shahed HUSSAIN, also Known as Malik Shahid Hussain, Malik Shahid Shakir Hussain, Malik Hussain, Malik Riaz Hussain, Mike Hussain and Mike Begum, Individually and Doing Business as Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, et al., Appellants, et al., Defendants.

531116

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 10, 2021

Decided and Entered: April 1, 2021

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Albany (Marc J. Kaim of counsel), for appellants.

LaMarche Safranko Law PLLC, Albany (Aimee E. Greer of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from an order of the Supreme Court(Buchanan, J.), entered November 26, 2019 in Saratoga County, which granted plaintiff's motion to confirm an order of attachment.

In October 2018, a rental limousine suffered a catastrophic brake failure and crashed in the Town of Schoharie, Schoharie County, killing Amanda Halse(hereinafter decedent) and 19 others.The limousine was titled to defendantShahed Hussain as the proprietor of a limousine rental business run under various names, an enterprise owned and/or operated by himself, defendantNauman Hussain and defendantMalik Riaz Hussain.An investigation after the accident revealed failings in the registration, inspection, maintenance and operation of the limousine, and Nauman Hussain, who was handling the day-to-day affairs of the limousine rental business during the relevant period, is facing criminal charges for improperly putting the limousine into service on the day of the crash.

In October 2019, plaintiff, the administrator of decedent's estate, commenced this action asserting various claims against the Hussains and defendantMavis Discount Tire, Inc., which had inspected the limousine and claimed to have performed repair work on it before the crash.Plaintiff simultaneously sought an ex parte order of attachment against four parcels of real property – one titled to Malik Riaz Hussain, one to Shahed Hussain and two to Nauman Hussain – that had been listed for sale.The order of attachment was granted and, following levy, plaintiff moved to confirm it in a timely manner (seeCPLR 6211[b] ).The confirmation motion was granted by Supreme Court in a November 2019 order, and Shahed Hussain and Nauman Hussain(hereinafter collectively referred to as defendants) appeal.

We begin by noting that defendants did not take an appeal from the October 2019 order of attachment and, indeed, had no right to do so given that it was granted without notice (seeCPLR 5701[a][2];Cascioli v. Gonzalez,173 A.D.2d 1064, 1064, 571 N.Y.S.2d 895[1991] ).As such, their attempt to directly attack the October 2019 order is not properly before us.The appropriate inquiry is instead whether Supreme Court, in the November 2019 order, abused its discretion by granting plaintiff's motion to confirm and continue the order of attachment (seeCPLR 6211[b];Morgenthau v.Avion Resources Ltd., 49 A.D.3d 50, 58, 849 N.Y.S.2d 223[2007], mod on other grounds11 N.Y.3d 383, 869 N.Y.S.2d 886, 898 N.E.2d 929[2008] ).After considering the record from that perspective – and bearing in mind that the statutory provisions authorizing the drastic remedy of attachment must be "strictly construed in favor of those against whom it may be employed"( Grafstein v. Schwartz,100 A.D.3d 699, 699, 953 N.Y.S.2d 681[2012];accordNortheast United Corp. v. Lewis,137 A.D.3d 1387, 1388, 26 N.Y.S.3d 810[2016] ) – we affirm.

In order to obtain confirmation, plaintiff was obliged to "demonstrate[ ] the grounds for the attachment, the need for the continuing levy and the probability that [he] would succeed on the merits in [his] action against"defendants( Board of Educ. of City of N.Y. v. Treyball,86 A.D.2d 639, 640, 446 N.Y.S.2d 417[1982], appeals dismissed56 N.Y.2d 683, 451 N.Y.S.2d 731, 436 N.E.2d 1333[1982], lvs dismissed57 N.Y.2d 601, 454 N.Y.S.2d 1025, 439 N.E.2d 1244[1982];seeCPLR 6211[b]; 6212[a]).Notwithstanding defendants' complaints, plaintiff appropriately attempted to satisfy that burden via an attorney affirmation in which counsel annexed documentary evidence to support some allegations and cited sources for others made "upon information and belief"(seeSwiss Bank Corp. v. Mehdi Eatessami,26 A.D.2d 287, 290, 273 N.Y.S.2d 935[1966];Executive House Realty v. Hagen,108 Misc.2d 986, 988, 438 N.Y.S.2d 174[1981];see alsoKuriansky v. Bed–Stuy Health Care Corp.,135 A.D.2d 160, 169–170, 525 N.Y.S.2d 225[1988], affd73 N.Y.2d 875, 538 N.Y.S.2d 233, 535 N.E.2d 286[1988] ).Plaintiff demonstrated a probability of success on his claims, pointing to an affirmation from the Schoharie County District Attorney and supporting exhibits setting forth how the limousine was not safe to drive at the time of the accident because of brake problems and other regulatory and safety issues and that Nauman Hussain, who was handling the day-to-day affairs of the business after Shahed Hussain left the country, knew or should have been aware of that fact.It further appears that the potential recovery on those claims exceeds any counterclaims from defendants(seeCPLR 6212[a] ).The issue accordingly turns to whether plaintiff established one or both of his claimed grounds for attachment, and we address each in turn.

Plaintiff first pointed to CPLR 6201(3), which, because he is likely to succeed in recovering a money judgment against defendants, applies if defendants"assigned, disposed of, encumbered or secreted property," or were about to do so, with the "intent to defraud [their] creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor"(seeNortheast United Corp. v. Lewis,137 A.D.3d at 1388, 26 N.Y.S.3d 810 ).The four parcels at issue were listed for sale in 2019 and, contrary to defendants' contention, those listings constituted an attempt to "dispose[ ] of" the parcels ( CPLR 6201[3];seeArzu v. Arzu,190 A.D.2d 87, 92, 597 N.Y.S.2d 322[1993]; Black's Law Dictionary [11th ed 2019], disposition).As "[t]he mere removal or assignment or other disposition of property is not grounds for attachment," however, plaintiff was further required to show that defendants offered the four properties for sale with the requisite intent to either defraud their creditors or frustrate a potential money judgment ( Laco X–Ray Sys., Inc. v. Fingerhut,88 A.D.2d 425, 429, 453 N.Y.S.2d 757[1982], appeal dismissed58 N.Y.2d 826, 1983 WL 214785[1983], lvs dismissed58 N.Y.2d 606, 460 N.Y.S.2d 1026, 447 N.E.2d 86[1983];see651 Bay St., LLC v. Discenza,189 A.D.3d 952, 953, 137 N.Y.S.3d 374[2020] ).

Plaintiff endeavored to do so by noting, among other things, defendants' long history of retaining effective control over real property while engineering the transfer of title between themselves, Malik Riaz Hussain, other family members and closely held business entities, as well as their penchant for using aliases and impersonating other family members.Plaintiff further articulated how that behavior was ongoing, describing how one of defendants' close relatives had transferred title for several properties to a limited liability company that is apparently controlled in part by defendants and that bases its operations at a motel, purportedly operated by the relative, on one of the parcels at issue.The foregoing proof, particularly given that defendants placed the parcels at issue on the market when they knew or should have known that litigation relating to the limousine accident was looming, readily permitted the inference that their actions were intended to frustrate enforcement of a potential money judgment against them (seeCity of New York v. Citisource, Inc.,679 F. Supp. 393, 397[S.D. N.Y.1988];Albany Sav. Bank v. All Advantages Limousine Serv., Inc.,154 A.D.2d 759, 761–762, 546 N.Y.S.2d 207[1989] ).Plaintiff therefore met his burden of showing that defendants harbored the requisite intent in attempting to dispose of the parcels at issue and, in the absence of any proof to rebut that showing, he was properly granted confirmation under CPLR 6201(3)(seeAlbany Sav. Bank v. All Advantages Limousine Serv.,154 A.D.2d at 761–762, 546 N.Y.S.2d 207;compareNortheast United Corp. v. Lewis,137 A.D.3d at 1388–1389, 26 N.Y.S.3d 810 ).

Plaintiff was also entitled to confirmation with regard to Shahed Hussain because he was "a nondomiciliary residing without the state" within the meaning of CPLR 6201(1).Plaintiff represented, with support from annexed newspaper accounts, that Shahed Hussain left New York for Pakistan in March 2018 and had no plans to return to the United States.Those facts, which defendants presented no evidence to dispute, were sufficient to show that Shahed Hussain had established his domicile in Pakistan (seeMatter of Brunner,41 N.Y.2d 917, 918, 394 N.Y.S.2d 621, 363 N.E.2d 346[1977];Gotham Natl. Bank v. Martin,167 App.Div. 271, 273, 152 N.Y.S. 654[1915] ).Further, even accepting that Shahed Hussain had submitted to the jurisdiction of Supreme Court so as to require the additional showing of "an identifiable risk that [he] will not be able to satisfy the judgment,"¹ that risk is apparent from defendants' conduct in placing the parcels at issue on the market with the intent to frustrate the enforcement of a money judgment ( VisionChina Media Inc. v. Shareholder Representative Servs., LLC,109 A.D.3d 49, 60, 967 N.Y.S.2d 338[2013];seeITC Entertainment, Ltd. v. Nelson Film Partners,714 F.2d 217, 219, 221[2d Cir.1983] ).Thus, CPLR 6201(1) provided a separate basis to confirm the order of attachment with regard to the parcel owned by Shahed Hussain.

Finally, although defendants complain that their ability to...