Dina's Antinques, Inc. v Barca

[*1] Dina's Antinques, Inc. v Barca 2009 NY Slip Op 50956(U) [23 Misc 3d 1127(A)] Decided on May 18, 2009 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2009
Supreme Court, Dutchess County

Dina's Antinques, Inc., d/b/a FONTAINE'S AUCTION GALLERY, Plaintiff,

against

Andrew Barca, individually and d/b/a KINGS HIGHWAY ANTIQUES, Defendants.



9416/08



BETHANY A. RALPH, ESQ.

Attorney for Plaintiff

3294 East Main Street

P.O. Box 7

Amenia, New York 12501

KEITH P. BYRON, ESQ.

Senior Assistant County Attorney Office of Dutchess County Attorney

22 Market Street

Poughkeepsie, New York 12601

James D. Pagones, J.

The plaintiff moves for an order confirming an order of attachment made by this court on January 7, 2009. This application was made within five days of the date that the order was served on the first garnishee as required by CPLR Rule 6211(b). (Eisenberg v. Citation-Langley Corp., 115 Misc 2d 650 [Supreme Court, NY County 1982] affirmed 92 AD2d 795 [1st Dept. 1983].)

On this application, the plaintiff has the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits. (CPLR §6223; Board of Education of the City of New York v. Treyball, 86 AD2d 639, 640 [2d Dept. 1982].) The court conducted a hearing on March 17 and 18, 2009. Since the court has previously granted plaintiff summary judgment in lieu of a complaint, the merits of plaintiff's claim has been established.

The defendant and judgment-debtor, Andrew Barca, did not appear in response to this application and has offered no opposition. Nonetheless, the plaintiff has wholly failed to establish that he is entitled to an attachment of the items seized by the Sheriffs of Dutchess and Columbia Counties from the premises of the defendant's antique store. The plaintiff presented no evidence on this motion or at the hearing that would establish that defendant Andrew Barca owned any of the items seized by the sheriffs. The testimony of the witnesses at the hearing established the contrary.

Testimony was adduced from Beth Shapiro; Timothy S. Allred; Anthony Falzarine; Peter Mack; Arthur Marquis; Ellen Potter; Kevin Knapp; Zelma Swanson; Joseph Lowenbraun; David Kuhnle; Dominick Navarra; Irene Albertson; and Carl Albertson. Each of these individuals testified regarding specific property seized from defendant's premises as reflected in an inventory prepared by George Cole representing each of the items seized. Ralph Fontaine testified as to items levied by the Columbia County Sheriff based on plaintiff's assertion they were owned by [*2]the defendant. Each of the above individuals testified that they owned the specific items at the time of the seizure and that the items were only in the possession of defendant Barca on consignment.

I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding; potential bias or prejudice on the part of the witness; the appearance, sincerity and demeanor of the witness; the manner in which the witness gave testimony; and the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the proceeding. I found each of the above witnesses to be highly credible and I determine all issues of credibility in favor of each.

The plaintiff also presented the testimony of Lawrence Moore, an associate of plaintiff's counsel, who testified regarding a photograph of a "going out of business" sign in front of defendant's business. The plaintiff presented the testimony of George Cole, who inventoried and is currently storing, the items seized by the sheriff. Mr. Cole testified credibly that he did not know whether defendant Barca sold items in his store on consignment. The plaintiff presented the testimony of Columbia County Deputy Peter Grzeskow who served a levy upon Ralph Fontaine Heritage Auction. Deputy Grzeskow laid the foundation for admission into evidence of photographs of specific items allegedly belonging to defendant Barca in the possession of Ralph Fontaine. The plaintiff called John Fontaine, who testified that he sold merchandise to the defendant about five times, the last being in January, 2008, and that Mr. Barca owes him money. Mr. Fontaine opined that Mr. Barca did not sell antiques on consignment.

The plaintiff has presented no testimony which would establish that defendant Andrew Barca owned any of the items seized by either the Dutchess County or Columbia County Sheriffs. The plaintiff has not presented any evidence that would dispute the credible testimony of the numerous witnesses who testified as to their ownership of specific items of seized personalty and that it was left with Mr. Barca on consignment.

The plaintiff's counsel cites Article 9 of the Uniform Commercial Code in support of her argument that the plaintiff's rights to the seized personalty as a judgment creditor are superior to those of the consignors of that property. The court finds that the UCC offers no guidance relative to the specific issue before the court. The precise issue before the court is whether or not it should confirm an attachment pursuant to CPLR Article 62. A necessary element of proof by the plaintiff, pursuant to CPLR §6201(3), is that:

"The defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts."

The plaintiff has presented no credible evidence that the defendant undertook any steps to frustrate the enforcement of the plaintiff's judgment or that he engaged in any conduct with the intent to defraud plaintiff. The uncontroverted fact is that defendant neither assigned, disposed of, encumbered or secreted either his own property or that of his consignors in such a way as to avoid any of the myriad enforcement devices available in the CPLR. The circumstances presented herein are substantially different from the bankruptcy circumstances cited by the plaintiff in support of his UCC Article 9 argument. The plaintiff has presented no evidence that [*3]he has made any effort to enforce his judgment against any of the defendant's assets or that the defendant has intentionally avoided enforcement efforts. The plaintiff has wholly failed to establish that he is entitled to attachment of the seized personalty. Therefore, it is ordered that the plaintiff's motion to confirm the order of attachment of this court is denied. It is further ordered that the order of attachment dated January 7, 2009 is vacated.

The plaintiff was directed to post a $30,000.00 undertaking to secure, inter alia, all of the allowable fees, commissions, costs and disbursements of the Dutchess County and Columbia County Sheriffs attendant to their respective levies. Therefore, it is ordered that the plaintiff is directed to pay all fees, commissions, costs and disbursements of the Dutchess County and Columbia County Sheriffs within thirty days of the date of this order. In the event that the plaintiff fails to remit said fees within thirty days of the date of this order, then in that event, he shall forfeit his undertaking or such portion of it as will be necessary to pay the outstanding fees, commissions, costs and disbursements. The respective Sheriffs of Dutchess and Columbia Counties are directed to release all personalty seized pursuant to this court's order of attachment dated January 7, 2009 after receipt of payment of all fees, commissions, costs and disbursements. In consideration of the numerous individuals who have asserted ownership of the items currently in possession of the sheriffs, the court hereby stays the release of seized items until July 13, 2009 or until the expiration of forty-five days after the payment of all Sheriffs' fees, commissions, costs and disbursements, whichever is later, in order to permit all interested individuals to assert such legal claims as they may deem appropriate.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

May 18, 2009

ENTER

Hon. James D. Pagones, A.J.S.C.

TO:

DEPUTY PETER GRZESKOW

Office of the Columbia County Sheriff

85 Industrial Tract

Hudson, New York 12534

ANDREW BARCA

Defendant

King's Highway Antiques

4312 Albany Post Road

Hyde Park, New York 12538

BETH SHAPIRO

c/o SHAPIRO, BEILLY, ROSENBERG and

ARNOWITZ

225 Broadway

New York, New York 10007

TIMOTHY S. ALLRED

294 Broadway

Ulster Park, New York 12487

ANTHONY FALZARINE

100 Haviland Road

Highland, New York 12528

PETER MACK

76 James Street

Kingston, New York 12401

ARTHUR MARQUIS

452 Union Street

Hudson, New York 12534

ELLEN POTTER

597 Verbank Road

Millbrook, New York 12545

KEVIN KNAPP

50 Cochran Hill Road

Poughkeepsie, New York 12603 [*4]

ZELMA SWANSON

163 South Riverside Road

Highland, New York 12528

JOSEPH LOWENBRAUN

One Douglas Street

Poughkeepsie, New York 12603

DAVID KUHNLE

1221 Netherwood Road

Salt Point, New York 12578

DOMINICK NAVARRA

Hyde Park Country Auctions

323 Hibernia Road

Salt Point, New York 12578

RALPH FONTAINE

94 Dawes Avenue

Pittsfield, Massachusetts 01201

IRENE ALBERTSON

138 South Cross Road

Staatsburg, New York 12580

CARL ALBERSTON

138 South Cross Road

Staatsburg, New York 12580

JOHN FONTAINE

1485 West Housantonic Street

Pittsfield, Massachusetts 01201

LYANNE ORNSTEIN

19 Julia Drive

Hyde Park, New York 12538

ODDVAR BAKKEN

139 Rombout Avenue, Apt. 7

Beacon, New York 12508

ROSE ANNE FALZARINE

101 Haviland Avenue

Highland, New York 12528

WILLIAM MARTIN

P.O. Box 64

Hyde Park, New York 12538

CHERYL SWANSON

c/o Swan & Castle Antiques, Inc.

163 South Riverside Road

Highland, New York 12528

ANN BAREISCH

10 Canterbury Road, Apt. 3A

Great Neck, New York 11021

FAITH and WILLIAM LARSON

6119 Route 9

Rhinebeck, New York 12572

CAROL YOUNG

P.O. Box 424

New Lebanon, New York 12125

051509 decision & order