Merrick v. Four Star Stage Lighting, Inc.
| Decision Date | 30 December 1975 |
| Citation | 378 N.Y.S.2d 65,50 A.D.2d 335 |
| Parties | David MERRICK, Plaintiff-Respondent, v. FOUR STAR STAGE LIGHTING, INC., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Philip R. Forlenza, New York City, of counsel (Hawkins, Delafield & Wood, New York City, and Crossin & Crossin, Larchmont), for defendants-appellants.
Harold J. Sherman, New York City, of counsel (Benjamin Aslan, New York City, with him on the brief, Fitelson & Mayers, New York City), for plaintiff-respondent.
Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, CAPOZZOLI and LYNCH, JJ.
The defendants appeal from an order directing the Sheriff to seize personalty consisting of electrical lighting equipment useful for theatrical productions. Plaintiff, a well-known stage producer, stored this equipment with the defendant Four Star Stage Lighting, Inc. (Four Star) of which defendant De Verna is now President.
Plaintiff demanded the return of his equipment in the latter part of 1974, and in December 1974 notified the defendants that he expected to take possession in January 1975. In April 1975, he commenced a replevin action for the equipment and for wrongful use and conversion thereof.
A hearing was held before Mr. Justice Andrew R. Tyler in July 1975 pursuant to order to show cause as to why an order of seizure should not be entered, including the direction to the Sheriff 'to break open, enter, search and seize the property in the places where the property may be' and hold it pursuant to the provisions of CPLR Article 71.
It is conceded that the property in question belongs to plaintiff, although the defendants contend that some of it is fungible and indistinguishable from defendants' own equipment.
The original storage agreement going back to 1967 was oral and provided for the payment by Merrick to defendant Four Star of 7% Of the value of his equipment for handling and storage. De Verna did not become a principal in Four Star until 1971. * Prior to that time, there is little doubt that the equipment was commingled by and used by Four Star for other productions. Thereafter, Merrick claims and De Verna denies that Merrick directed that it be segregated. While the parties agree that the storage arrangement is terminable at will, it is contended by De Verna that the availability of the equipment for use by Four Star made a delay of its return imperative due to the fact that it was used in other production among them 'Chorus Line', the current theatrical hit show.
Merrick claims that De Verna 'stalled' return of the equipment because he was profiting by its use. De Verna claims that Merrick demanded the equipment's return as a ploy in negotiations for its sale to Four Star. In any event, De Verna testified at the hearing before Judge Tyler that it would take 90 days for him to return the equipment 'without a serious business interruption.'
There are no constitutional issues here. While Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) seemingly mandates procedural due process requiring notice and an adversary hearing prior to seizure, Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1973), made it clear that in the ordinary repossession situation where you have the problem of balancing creditors' claims for payment and the debtor's interest in uninterrupted possession of goods, it would be sufficient if the creditor furnish adequate security and satisfy the court in a factual showing of the validity of the claim. A prompt subsequent adversary hearing after sequestration would then be sufficient. Procedural due process has been followed here, and further an undertaking has been submitted by the plaintiff of over $900,000.
In 1971, following a determination by a three-judge Federal Court that the predecessor Article 71 of the CPLR was unconstitutional in violation of the Fourth and Fourteenth Amendments, ...
To continue reading
Request your trial
-
Merrick v. Four Star Stage Lighting, Inc.
...been before this Court on two prior occasions. It was before us when Merrick sought seizure of the lighting equipment in issue (50 A.D.2d 335, 378 N.Y.S.2d 65), and it was before us again when this Court stayed defendants' action against Merrick for abuse of process, libel, etc (56 A.D.2d 7......
-
Dominick & Dominick, Inc. v. Nair
...S.Ct. 1895, 40 L.Ed.2d 406 (1973); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Merrick v. Four Star Light., 50 A.D.2d 335, 378 N.Y.S.2d 65 (1st Dept. 1975), there was no record made of the financial arrangements between the plaintiff and the defendant, which would ......