| Siemens Med. Solutions USA, Inc. v Magnetic Resonance ImagingAssoc. of Queens, P.C. |
| 2012 NY Slip Op 07289 [100 AD3d 620] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Siemens Medical Solutions USA, Inc.,Appellant, v Magnetic Resonance Imaging Associates of Queens, P.C., et al.,Respondents. |
—[*1] Kern Augustine Conroy & Schoppmann, P.C., Garden City, N.Y. (Edward R. Hopkins ofcounsel), for respondents.
In an action, inter alia, for replevin and to recover damages for breach of three equipmentleases, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Grays, J.),entered May 16, 2011, which denied its motion pursuant to CPLR 7102 for an order of seizure,and (2), as limited by its brief, from so much an order of the same court entered November 29,2011, as, upon reargument, adhered to the determination in the order entered May 16, 2011, anddenied that branch of the plaintiff's motion which was for leave to renew its motion pursuant toCPLR 7102 for an order of seizure.
Ordered that the appeal from the order entered May 16, 2011, is dismissed, as that order wassuperseded by the order entered November 29, 2011, made upon reargument; and it is further,
Ordered that the order entered November 29, 2011, is reversed insofar as appealed from, onthe law, upon reargument, the order entered May 16, 2011, denying the plaintiff's motionpursuant to CPLR 7102 for an order of seizure is vacated, the plaintiff's motion pursuant toCPLR 7102 for an order of seizure is granted, that branch of the plaintiff's motion which was forleave to renew its motion pursuant to CPLR 7102 for an order of seizure is denied as academic,and the matter is remitted to the Supreme Court, Queens County, for the entry of an order ofseizure; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant Magnetic Resonance Imaging Associates of Queens, P.C. (hereinafter MRIAssociates), leased medical equipment from the plaintiff pursuant to three leases. After MRIAssociates defaulted in making its payments under the leases, the plaintiff commenced thisaction seeking, inter alia, replevin of the leased equipment and to recover damages for breach ofthe leases.
After commencing the action, the plaintiff moved for an order of seizure pursuant to [*2]CPLR 7102. The defendants opposed the motion, contending, interalia, that MRI Associates was fraudulently induced to enter into the three leases because theequipment was not "state of the art" and never performed as promised, and that the plaintifffailed to service and maintain the equipment as agreed.
Upon reargument, the Supreme Court should have granted the plaintiff's motion for an orderof seizure pursuant to CPLR 7102. On a motion for an order of seizure, a plaintiff mustdemonstrate a likelihood of success on its cause of action for replevin and the absence of a validdefense to its claim (see CPLR 7102 [c], [d]; Astrep Serv. Corp. v Banco Popular N. Am., 19 AD3d 341 [2005];Stoll Am. Knitting Mach. v CreativeKnitwear Corp., 5 AD3d 586, 586-587 [2004]; Zweng v Thompson, 283 AD2d641 [2001]). Here, the plaintiff made such a showing (see Theodore & Theodore Assoc. vA.I. Credit Corp., 172 AD2d 824, 825 [1991]). Contrary to the determination of the SupremeCourt, under the circumstances of this case, MRI Associates's contention that it was fraudulentlyinduced into entering into the leases would not constitute a defense to the plaintiff's cause ofaction for replevin of the equipment. Even if the leases were rescinded on the ground offraudulent inducement, MRI Associates has not demonstrated a superior right to possession ofthe equipment (cf. Scutti Pontiac v Rund, 92 Misc 2d 881, 882-885 [1978]).
In light of our determination, we need not reach the plaintiff's remaining contentions. Skelos,J.P., Florio, Lott and Miller, JJ., concur.