Mermaid Marine, Ltd. v. Mar. Capital Mgmt. Partners, Ltd.

• Decision Date: 14 February 2017
• Citation: 46 N.Y.S.3d 780 (Mem),147 A.D.3d 498,2017 N.Y. Slip Op. 01155
• Parties: In re MERMAID MARINE, LTD., Petitioner–Appellant, v. MARITIME CAPITAL MANAGEMENT PARTNERS, LTD., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 498

46 N.Y.S.3d 780 (Mem)

2017 N.Y. Slip Op. 01155

In re MERMAID MARINE, LTD., Petitioner–Appellant,

v.MARITIME CAPITAL MANAGEMENT PARTNERS, LTD., Respondent–Respondent.

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

Feb. 14, 2017.

Kennedy Lillis Schmidt & English, New York (Nathan T. Williams of counsel), for appellant.

Ceres Law PC, New York (Rudyard W. Ceres of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Carol Edmead, J.), entered November 6, 2015, which denied the petition for an order of attachment and an order compelling a representative of respondent to submit to a deposition, and dismissed the proceeding brought pursuant to CPLR article 75; and order, same court and Justice, entered October 30, 2015, which, upon reargument and renewal of the petition, adhered to the original determination, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying the petition for an order of attachment (VisionChina Media Inc. v. Shareholder Representative Servs., LLC, 109 A.D.3d 49, 59, 967 N.Y.S.2d 338 [1st Dept.2013] ). Petitioner did not meet its burden of demonstrating that the arbitration award sought may be rendered ineffectual without an order of attachment (CPLR 7502[c] ; Matter of Kadish v. First Midwest Sec., Inc., 115 A.D.3d 445, 445, 981 N.Y.S.2d 525 [1st Dept.2014] ). In particular, petitioner has not shown through admissible evidence that respondent would be financially unable to pay the arbitration award or would undertake deceptive actions to avoid paying it, if one were rendered. Accordingly, an order of attachment for respondent's assets is inappropriate.

Petitioner has not shown the "necessity" for court-ordered discovery of respondent's assets at this time (International Components Corp. v. Klaiber, 54 A.D.2d 550, 551, 387 N.Y.S.2d 253 [1st Dept.1976] ; see also JPMorgan Chase Bank v. Reibestein, 34 A.D.3d 308, 309, 824 N.Y.S.2d 259 [1st Dept.2006] ).

TOM, J.P., SWEENY, RENWICK, MOSKOWITZ, KAPNICK, JJ., concur.