Morning Glory Media, Inc. v. Enright

• Decision Date: 06 September 1979
• Parties: MORNING GLORY MEDIA, INC., Plaintiff, v. Thomas A. ENRIGHT, Gene Fausette and Gladys Fausette, Defendants.
• Court: New York Supreme Court

Page 176

420 N.Y.S.2d 176

100 Misc.2d 872

MORNING GLORY MEDIA, INC., Plaintiff, v. Thomas A. ENRIGHT, Gene Fausette and Gladys Fausette, Defendants.

Supreme Court, Monroe County.

Sept. 6, 1979.

Antell, Harris & Calleri, Rochester, for plaintiff; Michael T. Hagelberg, Rochester, of counsel

Lamb, Webster, Walz, Donovan & Sullivan, Rochester, for defendants; Herman J. Walz, Rochester, of counsel.

DECISION

JOHN A. MASTRELLA, Justice.

This is a motion for an order confirming an order of seizure granted to the plaintiff, Morning Glory Media, Inc., under the recently revised article 71 of the Civil Practice Law and Rules (hereinafter CPLR). In this case, which appears to be one of first impression, the defendants question the constitutionality of the procedure of granting an order of seizure without notice, and also question to what extent a defense may be interposed to defeat an application for replevin of chattels.

On November 9, 1978, the plaintiff corporation acquired a typesetting machine. The defendant, Gene Fausette, personally guaranteed a loan for the machine; and the defendants, Thomas Enright and Gladys Fausette, posted collateral as security for the said purchase. On that same date the plaintiff corporation, Thomas Enright, and Gladys Fausette entered into an agreement whereby each would possess a one-third interest in the typesetting machine and the plaintiff would have the sole and exclusive right to operate and administer the machine and to provide, supervise, and/or administer the operator of the machine. As consideration, plaintiff agreed to pay Thomas Enright and Gladys Fausette the sum of Twenty-five Dollars ($25) a month each as long as their security for the loan was posted with Manufacturers Hanover Trust Company. The agreement further provided that Enright and Fausette give plaintiff the exclusive right to exchange the security given by them to the bank and that they would do nothing to prevent plaintiff from eventually owning complete interest in the typesetting machine.

On February 11, 1979, the Board of Directors of the plaintiff corporation, including all three defendants, by resolution modified the original agreement to provide that the typesetting machine would still be owned with equal interests by the corporation, Thomas Enright, and Gladys Fausette, and that each party would be liable for one-third of the maintenance costs and expenses of the machine. The resolution also provided that Kenneth Browne, the president of the corporation, and the corporation would have the right to use the typesetting machine at an hourly rate, and that the administration of the machine would be in the joint control of the corporation, Thomas Enright, and Gladys Fausette.

Plaintiff, by its president, Kenneth Browne, thereafter commenced this replevin action, and on April 27, 1979 obtained an Order of Seizure without Notice pursuant to CPLR 7102, which was served on the defendants by the Sheriff on April 30, 1979. Prior to its seizure, the machine was located at the place of business of the defendant, Gene Fausette. The machine was moved by the Sheriff to a third party's place of business, Migdol Printers, Inc., Rochester, New York. However, this Court has been informed that Kenneth Browne has recently moved the machine to his apartment, where it is under the Sheriff's deal.

Plaintiff is now bringing this motion to confirm the order of seizure pursuant to CPLR 7102, subd. d, par. (4). In response to plaintiff's application, defendants first claim that the granting of the order of seizure without notice is in violation of constitutional procedural due process requirements.

It is clear, however, that a strong presumption of constitutionality attaches to an act of the Legislature and this presumption can only be overcome by clear and convincing proof, persuasive beyond a reasonable doubt (Hotel Dorset Co. v. Trust for Cultural Resources of City of N. Y., 46 N.Y.2d 358, 371, 413 N.Y.S.2d 357, 362, 385 N.E.2d 1284, 1290; see also, 8 N.Y.Jur., Constitutional Law, §§ 59, 64, 79, 80 and discussion and cases therein). Furthermore, even if the validity of the legislative enactment is debatable, the legislative judgment must control (Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269, 273, 189 N.Y.S.2d 212, 214, 160 N.E.2d 501, 502; Rodgers v. Village of Tarrytown, 302 N.Y. 115, 120, 96 N.E.2d 731, 732).

The last major revision of article 71 was in 1971 when the Legislature acted in response to the decision in Laprease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y.) in which the court held unconstitutional the provisions of section 7102 permitting the seizure of chattels by a public officer without a court order. The statute, as then amended, was vague. The application to the court and the order of seizure and/or forcible entry was required to contain only sufficient facts and terms to conform to the "due process of law requirements of the Fourteenth Amendment to the Constitution of the United States." However, effective January 1, 1979, much of article 71 of the CPLR was amended by the Legislature (L.1978, c. 81), as recommended by the Judicial Conference of the Office of Court Administration; and the requirements for the procedures governing the issuance of an order of seizure were made more specific (Report of the Admin.Bd. of the Jud.Conf., the Jud.Conf. and the Off. of Ct.Admin., N.Y.Legis.Doc., 1978, No. 90, pp. 255-271).

CPLR 7102; subdivisions c and d, paragraph (1), taken together, provide what plaintiff must set forth in his papers and what plaintiff must prove in order to obtain the order of seizure:

"(c) Affidavit. The Application for an order of seizure shall be supported by an affidavit Which shall clearly identify the chattel to be seized and shall state:

1. that the plaintiff is entitled to possession by virtue of facts set forth;

2. that the chattel is wrongfully held by the defendant named;

3. whether an action to recover the chattel has been commenced, the defendants served, whether they are in default, and, if they have appeared, where papers may be served upon them;

4. the value of each chattel or class of chattels claimed, or the aggregate value of all chattels claimed;

5. if the plaintiff seeks the inclusion in the order of seizure of a provision authorizing the sheriff to break open, enter and search for the chattel, The place where the chattel is located and facts sufficient to establish probable cause to believe that the chattel is located at that place;

6. That no defense to the claim is known to the plaintiff; and

7. If the plaintiff seeks an order of seizure without notice, facts sufficient to establish that unless such order is granted without notice, it is probable the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value.

"(d) Order of seizure. 1. Upon presentation of the affidavit and undertaking and upon Finding that is is probable the plaintiff will succeed on the merits and the facts are as stated in the affidavit, the court may grant an order directing the sheriff of any county where the chattel is found to seize the chattel described in the affidavit and including, if the court so directs, a provision that, if the chattel is not delivered to the sheriff, he may break open, enter and search for the chattel in the place Specified in the affidavit. The plaintiff shall have the burden of establishing the grounds for the order." (Underscored material is new).

Section 7102, subdivision d, paragraph (2) was amended to provide that "(u) pon a motion for an order of seizure, the court, without notice to the defendant, may grant a temporary restraining order that the chattel shall not be removed from the state if it is a vehicle, aircraft, or vessel or, otherwise, from its location transferred, sold, pledged, assigned or otherwise disposed of or permitted to become subject to a security interest or lien until further order of the court." CPLR, subdivision d, paragraph (3), which is new, provides that an order of seizure "may be granted without notice only if, in addition to the other prerequisites for the granting of the order, the court finds that unless such order is granted without notice it is probable that the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will be substantially impaired in value." Paragraph (4) of the same subdivision, which also is new, provides that if an order of seizure is granted without notice, the plaintiff must move within five days after seizure or such order shall have no further effect and shall be vacated on motion, and any chattel under such order must be returned to the defendant forthwith. Furthermore, "(u)pon the motion to confirm, the plaintiff shall have the burden of establishing the grounds for confirmation." Plaintiff must also provide an undertaking executed by sufficient surety acceptable to the court in an amount not less than twice the value of the chattel so set forth by the plaintiff in his affidavit (CPLR 7102, subd. e). Finally, CPLR 7108, subdivision (a) was amended to provide that '(i) f an order of seizure granted without notice is not confirmed . . . , the plaintiff, unless the court orders otherwise upon good cause shown, shall be liable to the defendant for all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the granting of the order of seizure without notice, and the plaintiff's liability shall not be limited to the amount of the undertaking."

Between 1969 and 1975 the Supreme Court of the United States, in a tetralogy of decisions, has set forth guidelines for courts to gauge whether provisional remedies, of which replevin is one, comply with procedural due process requirements (see Donnelly, Study of Attachment, Replevin, Receivership, Arrest,...