Fred W. Kellerman, Inc. v. Dale Park Homes, Inc.

Samuel Rabin, J. Application by a judgment creditor authorizing it to maintain actions against three financial institutions, allegedly indebted to the judgment debtors. One of such financial institutions, the Union Square Savings Bank, has not interposed any opposition to the application. The court has been informed by the attorney for the movant that the said bank has agreed to deliver the moneys held by it to the Sheriff. [969] and has requested that the motion with respect to this respondent he withdrawn. That application is granted. The remaining institutions have interposed affidavits in opposition both on the ground that the movant has failed to show any likelihood of success in the proposed litigation, and that the moving papers have not been served upon all necessary parties. This motion is made pursuant to the provisions of section 687-a of the Civil Practice Act, which was enacted upon the recommendation of the Law Revision Commission of the State of New York (L.1952, ch. 835, eff. Sept. 1, 1952; 1952 Report of N. Y. Law Rev. Comm., p. 357 et seq.). While the parties who have not been given notice of this application may be indispensable in the litigation itself, pursuant to the provisions of section 193 of the Civil Practice Act, the court finds nothing in the statute which requires that notice of the application by the judgment creditor for leave to institute the litigation as a preliminary thereto must be given to them. The court is of the opinion that in view of the purpose of the new remedy as outlined in' the recommendations of the Law Revision Commission, the judgment creditor has made out a prima facie case which warrants the application of the new procedure, and the motion is, accordingly, granted, not alone with respect to the two unsatisfied judgments embraced in the original application, but the third judgment described in the reply affidavit of the judgment creditor’s attorney sworn to August 6, 1956. Submit order on notice.