Seider v. Roth
| Decision Date | 12 June 1967 |
| Citation | 280 N.Y.S.2d 1005,28 A.D.2d 698 |
| Parties | Rona SEIDER et al., Respondents-Appellants, v. Marie Helen ROTH, Defendant, and Andre Joseph Lemieux, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before BELDOCK, P.J., and CHRIST, RABIN, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages Inter alia for personal injury allegedly sustained through the negligence of defendants in the operation of their respective automobiles, defendant Lemieux appeals from so much of an order of the Supreme Court, Nassau County, dated July 19, 1966, as denied his motion to vacate the levy of attachment herein and granted plaintiffs' cross motion to the extent of dismissing the second, fifth and sixth affirmative defenses contained in his answer. Plaintiffs cross-appeal from so much of said order as denied their motion insofar as it was (1) to dismiss the first, third and fourth affirmative defenses contained in Lemieux's answer and (2) to extend their time to commence a proceeding pursuant to CPLR 6214, subdivision (d) or to take actual custody of the attached property.
Order modified by granting plaintiffs' cross motion to the further extent of extending the time within which they may commence a special proceeding to compel payment, delivery or transfer of the property attached to the sheriff until ninety days after the entry of final judgment herein. As so modified, order affirmed, without costs.
In our opinion, CPLR 6214 requires that, in order to keep a levy pursuant to an order of attachment alive beyond the original ninety-day period, either the sheriff must reduce to his custody all property capable of delivery or plaintiffs must commence a special proceeding to compel payment, delivery or transfer to the sheriff of the thing attached. If neither of these things is done within the ninety-day period, the levy is void unless the court, upon motion of plaintiffs, has extended the time within which such a special proceeding may be brought. Under the former practice, a motion for an extension of time had to be made within ninety days of the levy (Fishman v. Sanders, 18 A.D.2d 689, 235 N.Y.S.2d 861). However, this limitation of the time within which the motion must be brought is no longer applicable (7 Weinstein-Korn-Miller, N.Y. Civ.Prac., 6214.15). This is a proper case for the grant of extension of time within which a special proceeding must be brought, in view of the novelty of the...
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National American Corp. v. Fed. Rep. of Nigeria
...because Section 6214(e) does not, by its terms, require the motion to be made within the ninety day period.20Seider v. Roth, 28 A.D.2d 698, 280 N.Y.S.2d 1005 (2d Dep't 1967) (attachment of liability insurer's obligation to defend). Therefore, while the motion under 6214(e) technically may b......
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Amoco Overseas Oil v. COMPAGNIE NAT. ALGERIENNE DE NAVIGATION
...in the statutory wording to hold that the levy period may be extended even after the levy has become void. Seider v. Roth, 28 A.D.2d 698, 280 N.Y.S.2d 1005 (2d Dep't 1967); Cenkner v. Shafer, 61 Misc.2d 807, 306 N.Y.S.2d 634 (Sup.Ct.1970) (dictum). Contra, Worldwide Carriers, Ltd. v. Aris S......
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Amoco Overseas Oil v. COMPAGNIE NATIONALE, ETC.
...possession may be signed after the expiration of the ninety-day period in which the property should have been seized. Seider v. Roth, 1967, 28 A.D.2d 698, 280 N.Y.S.2d 1005. This result is commendable, so long as there are no intervening 7B McKinney's Supp.Pamph. 57 (1964-1977). There appea......
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Worldwide Carriers Ltd. v. Aris Steamship Co.
...Cir. 1965); 7A Weinstein, Korn & Miller ¶ 6214.15 and cases collected at 62—137 n. 46, 62—138-139 n. 49. But see Seider v. Roth, 28 A.D.2d 698, 280 N.Y.S.2d 1005 (2d Dep't 1967). 6 See pp. 177-178, 7 However, a motion for an extension of time in which to bring on the special proceeding may ......