Laprease v. Raymours Furniture Company, No. 70-CV-16

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtFEINBERG, Circuit , and FOLEY and PORT
Citation315 F. Supp. 716
PartiesBeverly LAPREASE, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. RAYMOURS FURNITURE COMPANY, Inc., Individually and on behalf of all other persons similarly situated, and Louis Engle and Patrick Corbett, individually and as non-judicial personnel and enforcement officers of the Courts of the State of New York and on behalf of all other persons similarly situated, Defendants. Clifford LAWSON, Judith Lawson and Joan Messler, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Michael GALVIN and Earl Stoddard, In their capacity as City Marshals of the City of Albany, on behalf of themselves and all others similarly situated, Edward M. Fischer, in his capacity as Sheriff of Albany County, on behalf of himself and all others similarly situated, and Louis J. Lefkowitz, in his capacity as Attorney General of the State of New York, Defendants.
Docket NumberNo. 70-CV-16,70-CV-50.
Decision Date29 July 1970

315 F. Supp. 716

Beverly LAPREASE, Individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
RAYMOURS FURNITURE COMPANY, Inc., Individually and on behalf of all other persons similarly situated, and Louis Engle and Patrick Corbett, individually and as non-judicial personnel and enforcement officers of the Courts of the State of New York and on behalf of all other persons similarly situated, Defendants.

Clifford LAWSON, Judith Lawson and Joan Messler, on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
Michael GALVIN and Earl Stoddard, In their capacity as City Marshals of the City of Albany, on behalf of themselves and all others similarly situated, Edward M. Fischer, in his capacity as Sheriff of Albany County, on behalf of himself and all others similarly situated, and Louis J. Lefkowitz, in his capacity as Attorney General of the State of New York, Defendants.

Nos. 70-CV-16, 70-CV-50.

United States District Court, N. D. New York.

July 29, 1970.


315 F. Supp. 717

Onondaga Neighborhood Legal Services, Inc., Syracuse, N. Y., for plaintiff Laprease; Barbara B. Gregg, Syracuse, N. Y., of counsel.

Edward P. Kearse, Corp. Counsel, City of Syracuse, Syracuse, N. Y., for defendant Engle; Carl W. Dengel, Asst. Corp. Counsel, Syracuse, N. Y., of counsel.

William H. Welch, Syracuse, N. Y., for defendant Corbett.

Lawrence F. Klepper, Legal Aid Society of Albany, Inc., Albany, N. Y., for plaintiffs; Joel F. Spitzer, Albany, N. Y., Dennis B. Schlenker, Catskill, N. Y., David L. Corbin, Albany, N. Y., of counsel.

John W. Hacker, Corp. Counsel, City of Albany, Albany, N. Y., for defendants Galvin and Stoddard; George N. Meyl, Albany, N. Y., of counsel.

John J. Clyne, Albany County Atty., Albany, N. Y., for defendant Fischer.

Louis J. Lefkowitz, pro se; John Q. Driscoll, Asst. Atty. Gen., of counsel.

New York State Council of Retail Merchants, by Weil, Gotshal & Manges, New York City, amicus curiae.

General Motors Acceptance Corp. by Ross L. Malone, Gen. Counsel, New York City, amicus curiae.

C.I.T. Financial Corp. by Arthur L. B. Richardson, Gen. Counsel, New York City, amicus curiae.

315 F. Supp. 718

Ford Motor Credit Corp. by Wright Tisdale, Gen. Counsel, Dearborn, Mich., amicus curiae.

Chrysler Credit Corp., by Bookstein, Zubres & D'Agostino, Albany, N. Y., amicus curiae.

New York State Sheriff's Assn. by Edward G. Dillon, Albany, N. Y., amicus curiae.

New York State Bankers Assn. by Cravath, Swaine & Moore, New York City, amicus curiae; John W. Barnum, Richard S. Simmons, Howard G. Kristol, New York City, of counsel.

White Motor Corp. by Lynn, Burke & Lynn, Albany, N. Y., amicus curiae; Morton M. Z. Lynn, Albany, N. Y., of counsel.

Before FEINBERG, Circuit Judge, and FOLEY and PORT, District Judges.

PORT, District Judge.

In the above-entitled actions, consolidated for hearing, the plaintiffs seek to enjoin the defendants from enforcing Article 711 of the New York Civil Practice Law and Rules. That Article governs the procedure in a replevin action, and permits the prehearing seizure of the subject matter of the action without the intervention or order of a judicial officer.

Temporary restraining orders were issued in each case restraining the defendants from making seizures pursuant to the provisions of Article 712 and three-judge courts were designated and convened pursuant to 28 U.S.C. § 2281 et seq.

After hearing argument, the three-judge court in each case continued by stipulation injunctions against seizure from the named plaintiffs by the named defendants pursuant to the provisions of Article 71, except when done by an order of a judge or court of competent jurisdiction. The court also refused to continue the actions as class actions. It was stipulated upon the oral argument that the application for temporary and permanent injunctive relief be heard and decided upon the record before the court without the taking of any oral evidence.

THE STATUTORY SCHEME

Article 71 provides for the bringing of an action "to try the right of possession of a chattel," historically known as a replevin action. It mandates that the Sheriff, upon delivery to him by the plaintiff in the action of an affidavit, undertaking and requisition which is deemed to be the mandate of the court, seize the chattels described in the affidavit. If an action to recover the chattel has not been commenced, the statute requires that there be additionally delivered to him a summons and a complaint.

The requisition directs the Sheriff of any county where the chattel is found, to seize it. The Sheriff is obliged to serve upon the person from whose possession the chattel is seized, "a copy of the affidavit, requisition and undertaking delivered to him by the plaintiff." The statute does not by its terms require the Sheriff to serve the summons and complaint, which may have been delivered to

315 F. Supp. 719
him by the plaintiff-creditor. Moreover, the person in whose possession the chattel is found may not necessarily be a defendant in the action. Therefore there is no requirement that a summons and complaint be served upon the person from whose possession the chattel is taken, or upon anyone else at the time of such taking. Without fixing a time therefor, the statute requires that the affidavit, requisition and undertaking be served upon the defendants named in the action, unless the court otherwise orders

The affidavit to be delivered to the Sheriff, among other things, shall identify the chattel to be seized and state the value thereof. The undertaking is in a specified amount "not less than twice the value of the chattel stated in the plaintiff's affidavit," conditioned to secure the return of the chattel to any person to whom possession is awarded or the payment of a judgment against the person giving the undertaking.

The Sheriff retains possession of the seized chattel for a period of three days after which he delivers it to the plaintiff, unless in the meantime a person claiming the right to possession has reclaimed the chattel by filing with the Sheriff a notice of reclaimer, an undertaking in the same amount as the plaintiff's, and an affidavit similar to that required of the plaintiff. The Sheriff retains the chattel for three days after which he delivers it to the reclaimer. At any time the chattel is in the possession of the Sheriff, the chattel may be ordered impounded by the court on motion and cause shown.

C.P.L.R. § 7110 provides that the Sheriff shall forcibly enter a building or enclosure in order to search for and seize the chattel.

FACTS

Briefly stated, the plaintiff Laprease alleges that the defendant Raymours Furniture Co., Inc., has delivered an affidavit, requisition, undertaking and summons and complaint to the defendant Engle, Marshal for the City of Syracuse, requiring him to seize a bed, box-spring and mattress, a highchair, a chest, an eleven piece dinette set, and other household furnishings.

On January 19, 1970, the defendant Engle, accompanied by two representatives of the defendant Raymours, attempted to seize the above-mentioned articles and advised the plaintiff that if she did not release them a forcible entry into her apartment would be made. A representative of the defendant Raymours agreed to hold the seizure in abeyance upon certain specified payments being made by the plaintiff Laprease. Mrs. Laprease, however, states that she is on welfare and unable to make the required payments. Consequently, she alleges that she is in "immediate danger" of having these articles which are "necessary and essential for the healthy and proper living arrangements for herself, her ill husband and her ten children * * * forcibly and illegally seized."

Mrs. Laprease also alleges that she has lived in the State of New York all her life, in the City of Syracuse for the past 16 years, and at her present address for the past 7 years; that she has no intention of removing the chattels pending the outcome of the replevin action on the merits, and that she believes that she has a meritorious defense to the action; that a pretrial seizure would irreparably injure her in that she does not have money to post a bond to reclaim the chattels and that she is financially unable to replace them. She further alleges that the threatened action of the defendants Engle and Raymour place her in immediate danger of being subjected to an illegal search and seizure and a consequent unlawful invasion of her privacy.

Clifford and Judith Lawson, plaintiffs in 70-CV-50, alleged that they reside with their children in the City of Albany; that their sole income consists of $77.00 a week derived from the employment of Clifford; that they have no assets other than the household furniture, including a stove and refrigerator, all of which was purchased "on time" from Henry S. Mantell Finer Furniture (Mantell)

315 F. Supp. 720
in October of 1968; that payments of $40.00 bi-weekly, in accordance with a purchase agreement, were made for six weeks, at which time Clifford became ill

In March of 1969 a representative of Mantell's promised that they would not repossess the chattels if the plaintiffs would pay $20 every two weeks. It is alleged that these payments were made; nevertheless, a representative of Mantell's delivered an affidavit, requisition, and undertaking together with a summons and complaint, to the Sheriff of Albany County pursuant to Article 71. On or about February 16, 1970, the Sheriff seized the goods pursuant to Article 71. The plaintiffs allege that they were not able, financially, to acquire a surety or to post a bond in order to reclaim the goods. On February 18, 1970, Chief Judge Foley signed a temporary restraining order directing the return of the Lawson's chattels, and restraining further Article 71 action against them, pending the determination of the action.

Plaintiff Messler resides in the Village of Green Island, Albany County, New York, with her...

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63 practice notes
  • Epps v. Cortese, Civ. A. No. 70-2592.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 24, 1971
    ...clothes the Pennsylvania procedures involved on the present record. Plaintiffs rely heavily upon LaPrease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y. July 29, 1970). The provisions of the statute there being considered and the record before the Court may well distinguish it from th......
  • Soldal v. County of Cook, No. 89-3631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 27, 1991
    ...on it. Compare Dorsey v. Community Stores Corp., 346 F.Supp. 103 (E.D.Wis.1972) (3-judge panel), and Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970) (same), with McCormick v. First National Bank, 322 F.Supp. 604 It is no accident that the question has not arisen m......
  • Engblom v. Carey, No. 79 Civ. 4785 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 2, 1981
    ...L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970); but see Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), it fails for lack of the requisite reason......
  • Randone v. Appellate Department
    • United States
    • United States State Supreme Court (California)
    • August 26, 1971
    ...P.2d 504.) As a three-judge federal court recently observed in a similar context in Laprease v. Raymours Furniture Co. (N.D.N.Y.1970) 315 F.Supp. 716, 723--724, '(w)hile it is not hard to find that the interests of the * * * creditor * * * might be promoted by (this truncated procedure), th......
  • Request a trial to view additional results
63 cases
  • Epps v. Cortese, Civ. A. No. 70-2592.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 24, 1971
    ...clothes the Pennsylvania procedures involved on the present record. Plaintiffs rely heavily upon LaPrease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y. July 29, 1970). The provisions of the statute there being considered and the record before the Court may well distinguish it from th......
  • Soldal v. County of Cook, No. 89-3631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 27, 1991
    ...on it. Compare Dorsey v. Community Stores Corp., 346 F.Supp. 103 (E.D.Wis.1972) (3-judge panel), and Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970) (same), with McCormick v. First National Bank, 322 F.Supp. 604 It is no accident that the question has not arisen m......
  • Engblom v. Carey, No. 79 Civ. 4785 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 2, 1981
    ...L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970); but see Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), it fails for lack of the requisite reason......
  • Randone v. Appellate Department
    • United States
    • United States State Supreme Court (California)
    • August 26, 1971
    ...P.2d 504.) As a three-judge federal court recently observed in a similar context in Laprease v. Raymours Furniture Co. (N.D.N.Y.1970) 315 F.Supp. 716, 723--724, '(w)hile it is not hard to find that the interests of the * * * creditor * * * might be promoted by (this truncated procedure), th......
  • Request a trial to view additional results

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