M & R Leasing Inc. v Bank Atl.

M & R Leasing Inc. v Bank Atl. 2007 NY Slip Op 01810 [38 AD3d 239] March 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

M & R Leasing Inc., Respondent,
v
Bank Atlantic, Appellant, and Credit Suisse First Boston, LLC, et al., Respondents.

—[*1] Genoa & Associates, P.C., Old Brookville (Marilyn K. Genoa of counsel), for appellant.

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered August 11, 2006, which, to the extent appealed from, denied defendant Bank Atlantic's request for extension of its restraint on an account at defendants Credit Suisse, limited to one year the extension of Bank Atlantic's execution served on the Sheriff of New York City, and prohibited any further extensions of the execution, unanimously modified, on the law, the extension of restraint on the account granted, the prohibition against any further extensions of the restraint vacated, and otherwise affirmed, without costs.

Although the terms of the restraining order were within the court's discretion (CPLR 5240; see generally Guardian Loan Co. v Early, 47 NY2d 515, 519 [1979]), Bank Atlantic's motion was unopposed, and it has demonstrated that it will suffer prejudice without the opportunity for continuing restraint. Furthermore, the record reveals no countervailing rationale for the denial of that relief. Similarly, there is no reason in the record for prohibiting any further extension of the execution served on the Sheriff beyond the current extended date of June 15, 2007. That determination is best left to an appropriate application based on the facts existing at that time. Concur—Tom, J.P., Sullivan, Williams, Buckley and Kavanagh, JJ.