Costa v. Fantasia Distributing Corp.

Order of the Supreme Court, New York County, entered June 2,1980, which granted plaintiff-appellant’s motion for reargument of the order of April 18, 1980, granting appellant the immediate turn over to him of his works of art upon condition that he post security in the amount of $50,000, and upon reargument modified the previous order of April 18,1980 to the extent of reducing the amount of security required to $30,000, affirmed, without costs. In this action for conversion, damages, rescission and injunctive relief, plaintiff moved pursuant to CPLR 2701 for an order requiring respondents to turn the works of art over to him. Respondents did not oppose the motion but requested security. Special Term did not abuse its discretion in requiring appellant to post security in the sum of $30,000. CPLR 2701, in pertinent part provides: “The court *** may order personal property capable of delivery which is the subject of the action *** delivered to such person as it may direct, with such security as the court shall direct * * * if: * * * 2. a party has such property in his possession, custody or control and it belongs or is due to another party, where special circumstances make it desirable that payment or delivery to such other party should be withheld”. In this case there are such circumstances. It is asserted by respondents that appellant, an artist, voluntarily gave the artworks to respondents under an agreement pursuant to which respondents would sell and exploit the artworks, that a dispute arose as a result of which petitioner abrogated the agreement, that appellant is indebted to respondents in connection with their mutual business enterprise and that appellant does not reside in the United States. Conditioning the return of the property upon posting of a bond was appropriate. We find no basis for appellant’s claim that respondents effected a de facto attachment and violated appellant’s property rights contrary to due process. The situation here is akin to an action to enforce a lien. It is not a case of a pretrial seizure by respondents of appellant’s property (see Fuentes v Shevin, 407 US 67; North Ga. Finishing v Di-Chem, Inc., 419 US 601), inasmuch as respondents had lawful possession of the artworks pursuant to agreement with appellant. Concur — Birns, J. P., Markewich and Yesawich, JJ.