| Americredit Fin. Servs., Inc. v Decoteau |
| 2013 NY Slip Op 01053 [103 AD3d 761] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Americredit Financial Services, Inc.,Appellant, v Tyrone Decoteau, Respondent. |
—[*1] Jaroslawicz & Jaros LLC, New York, N.Y. (David Tolchin of counsel), forrespondent.
In an action, inter alia, for replevin and to recover damages for breach of contract,the plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Bayne, J.), dated January 27, 2012, as granted that branch of thedefendant's motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecause of action to recover damages for breach of contract.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) and(7) to dismiss the cause of action to recover damages for breach of contract is denied.
In October 2006, the defendant executed a retail installment contract with anautomobile dealer for the purchase of a 2003 Lincoln Town Car. The dealer assigned thecontract to the plaintiff. In 2010, the defendant defaulted in making his payments underthe contract and the plaintiff accelerated the debt and demanded full payment of theprincipal plus accrued interest. When the defendant did not tender payment, the plaintiffcommenced this action seeking, inter alia, replevin of the vehicle and to recover damagesfor breach of the retail installment contract. Thereafter, the plaintiff moved pursuant toCPLR 7102 for an order of seizure. The defendant opposed the motion and movedpursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint. The Supreme Courtgranted the plaintiff's motion pursuant to CPLR 7102 for an order of seizure and alsogranted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1)and (7) to dismiss the cause of action to recover damages for breach of contract, therebylimiting the plaintiff's possible recovery to possession of the subject property.
"The action of replevin is essentially possessory in its nature" (Roach vCurtis, 191 NY 387, 390 [1908]). It is a provisional remedy which may be used as anincident to an action to recover a chattel (see East Side Car Wash v K.R.K.Capitol, 102 AD2d 157, 161 [1984]). Pursuant to CPLR 7102 (c) and (d), on amotion for an order of seizure, "a plaintiff must demonstrate a likelihood of success onits cause of action for replevin and the absence of a valid defense to its claim" (Siemens Med. Solutions USA, Inc.v Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 AD3d 620, 621[2012]). [*2]An order of seizure is not a final dispositionof a matter but is a pendente lite order made in the context of a pending action where themovant has established, prima facie, a superior right in the chattel (see Staff vHemingway, 47 AD2d 709 [1975]).
Accordingly, while it is undisputed that the Supreme Court properly granted theplaintiff's motion pursuant to CPLR 7102 for an order of seizure, the Supreme Courterred in granting that branch of the defendant's motion which was pursuant to CPLR3211 (a) (1) and (7) to dismiss the cause of action to recover damages for breach ofcontract, thereby limiting the plaintiff's possible recovery to possession of the vehicle(cf. Roach v Curtis, 191 NY at 390). The defendant was not entitled to dismissalpursuant to CPLR 3211 (a) (1) of the cause of action to recover damages for breach ofcontract since he failed to utterly refute the plaintiff's factual allegations and conclusivelyestablish as a matter of law a defense to that cause of action (see Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Further, the defendant was notentitled to dismissal of that cause of action pursuant to CPLR 3211 (a) (7), since theallegations in the complaint were sufficient to state a cause of action for breach ofcontract.
The parties' remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ.,concur.