Richman v. Richman

• Decision Date: 09 January 1972
• Citation: 72 Misc.2d 803,339 N.Y.S.2d 589
• Parties: Nathan H. RICHMAN, Plaintiff, v. Florence K. RICHMAN, Defendant.
• Court: New York Supreme Court

Page 589

339 N.Y.S.2d 589

72 Misc.2d 803

Nathan H. RICHMAN, Plaintiff, v. Florence K. RICHMAN, Defendant.

Supreme Court, Albany County, Special Term.

Jan. 9, 1972.

E. Stewart Jones, Troy, for plaintiff; Arthur L. Rosen, Troy, of counsel.

Medwin & McMahon, Albany, for defendant.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, John Q. Driscoll, Asst. Atty. Gen., Albany, of counsel for State of New York.

EDWARD S. CONWAY, Justice.

This is a motion by the defendant for an order vacating the order of attachment granted by one of the Justice of this Court on November 13, 1972 on the ground that the attachment, the procedure for procuring the order authorizing said attachment, and the statute authorizing an attachment violates the 14th Amendment of the United States Constitution in that the State of New York has deprived the defendant herein of her property without due process of law.

Defendant, Florence K. Richman, moves to vacate and set aside the order of attachment granted by this Court without notice to the defendant, pursuant to Section 6211 of the CPLR. The warrant of attachment was granted in accordance with Section 6201, Subdivision 8 of the CPLR, on the complaint of the plaintiff, Nathan H. Richman, that the defendant had committed a conversion of certain monies and negotiable instruments. Plaintiff gave an undertaking pursuant to Rule 6212(b). Plaintiff has attached monies and negotiable instruments in excess of $143,000 held in several local banks pending the disposition of his action for conversion.

The defendant contends that the procedure established by CPLR, Article 62 for the issuance of orders of attachment is in violation of the 14th Amendment to the Constitution of the United States in that it provides for the seizure of property without due process of law. The defendant further contends that procedural due process requires the giving of notice and the opportunity for a hearing prior to the granting of an order of attachment, and that any significant taking of property by the State is within the purview of the due process clause.

Several recent cases dealing with prejudgment remedies of a plaintiff must be considered. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 is one of the leading cases concerning the constitutionality of provisional remedies. In Sniadach, supra, the Supreme Court of the United States held that the prejudgment garnishment of an alleged debtor's wages without notice and an opportunity for a hearing violated the procedural due process guarantee of the 14th Amendment to the United States Constitution. A broad reading of Sniadach, supra, would suggest that any attachment of the defendant's property without notice to the defendant violates due process. The constitutional underpinnings of ex parte attachment were further undermined by the United States Supreme Court in Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556.

In Fuentes, supra, the Court struck down a replevin statute which permitted the pre-trial seizure of chattels without prior notice to the defendant. Noting that property rights are no less sacred than personal rights, the Court held that, 'the constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions.' The Court added that, 'if the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.' While there may be 'extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event,' the Court saw no justification for a broad replevin statute permitting unlimited pre-trial seizures of chattels without notice to the defendant. The Fuentes case has clearly eliminated any distinction between the deprivation of replevied goods which are 'necessities' and goods in which the possessor has a significant property interest. Both are entitled to the protection of procedural due process for the 'Fourteenth Amendment speaks of 'property' generally', Cedar Rapids Engineering Co. v. Haenelt, 39 A.D.2d 275, 333 N.Y.S.2d 953, quoting Fuentes. The Court in Fuentes recognized that extraordinary situations might justify postponing notice and an opportunity to be heard. These situations, however, must be truly unusual or extraordinary.

The Supreme Court in Fuentes v. Shevin, supra, said:

'That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing Before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' Boddie v. Connecticut, supra, (401 U.S. 371) at 378--379, (91...