Morgenthau v Vinarsky

Morgenthau v Vinarsky 2010 NY Slip Op 02989 [72 AD3d 499] April 13, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Robert M. Morgenthau, as District Attorney of New York County, Respondent,
v
Gregory Vinarsky, Also Known as Gary Vinarsky, et al., Defendants, and Aron Goldman, Appellant.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac and Kenneth J. Gorman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for respondent.

Order, Supreme Court, New York County (Martin Shulman, J.), entered June 17, 2008, which, in this CPLR article 13-A forfeiture action, to the extent appealed from, granted plaintiff's motion for a preliminary injunction and an order of attachment, and denied defendant Goldman's cross motion to vacate a temporary restraining order, same court and Justice, entered on or about March 7, 2008, unanimously affirmed, without costs.

The indictment filed in the criminal prosecution underlying this action, the affirmation of the assistant district attorney, and the affidavit of the police detective demonstrate the requisite "substantial probability" that plaintiff will prevail on the forfeiture issue (CPLR 1312 [3]; Morgenthau v Citisource, Inc., 68 NY2d 211, 222 [1986]; Morgenthau v Goldmen & Co., 283 AD2d 212 [2001]). In the absence of an affidavit establishing the unavailability of other assets to satisfy defendant Goldman's financial needs (CPLR 1312 [4]), there is no basis for finding that the court failed to properly weigh plaintiff's need to preserve the availability of the subject assets against the hardship of injunction and attachment on defendant (CPLR 1312 [3] [b]). [*2]

We have considered defendant's remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Sweeny, Renwick, Freedman and RomÁn, JJ.