Hotel 71 Mezz Lender LLC v. Falor

OPINION OF THE COURT

Andrias, J.

On this appeal, appellants seek to vacate the prejudgment order confirming the ex parte attachment of their membership interests in 23 entities, including Delaware, Georgia and Florida limited liability companies and a solely owned Florida corporation, and the subsequent orders conditionally appointing a receiver of those out-of-state interests.

The facts and the procedural history of the case are not in dispute. In March 2005, plaintiff made a $27,338,801 mezzanine loan to Chicago H & S Senior Investors, LLC for the purpose of acquiring and renovating Hotel 71 in downtown Chicago. Repayment of this loan was personally guaranteed by appellants. By its terms, the guaranty is governed by New York law and the guarantors submitted to the jurisdiction of any federal or state court in the City of New York. After the borrower defaulted on the loan and filed for bankruptcy, plaintiff commenced this action, in April 2007, to enforce the guaranty. On September 25, 2007, after defendants had appeared and answered, asserting counterclaims, plaintiff moved in the Commercial Division, pursuant to CPLR 6201, for an ex parte order of attachment because of the likelihood that if defendants were provided with notice they would avoid entering the jurisdiction. The court signed the ex parte order, but, according to its subsequent order confirming the order of attachment, stayed service of the levy upon defendant Mitchell to afford him the opportunity to oppose the application.

On October 23, 2007, Mr. Mitchell appeared at the New York County courthouse for his deposition, in the course of which he was informed that the order of attachment had been issued four weeks earlier and that the court was waiting to hear counsel on the matter. After hearing counsel, the court instructed the sheriff to serve Mr. Mitchell in the courtroom. Thereafter, by order to show cause dated November 2, 2007, plaintiff moved pursuant to CPLR 6211 to confirm the order of attachment and for expedited disclosure pursuant to CPLR 6220. Plaintiff later moved, by order to show cause dated January 25, 2008, to strike the answer and for summary judgment in the event any of the appellants, other than Jennifer Falor, did not appear for their scheduled depositions. That motion and any resulting order or judgment is not the subject of these consolidated appeals. Subsequently, by order to show cause dated March 19, 2008, plaintiff moved pursuant to CPLR 5228 for appointment of a receiver because of appellants’ alleged refusal to produce documents related to their finances and their refusal to attend duly noticed depositions.

In the first order appealed from, entered February 8, 2008, the court granted plaintiffs motion to confirm the order of attachment in the sum of $65,149,926, on the grounds that plaintiff demonstrated the statutory requisites to confirm attachment and that the court, in its discretion, found that attachment was necessary in aid of security. Thereafter, in the second order and supplemental order appealed from, entered April 7, 2008, the court granted plaintiffs motion pursuant to CPLR 3126 and 5228, conditioned upon the entry of judgment, and appointed a receiver of the personal property of all appellants, which is identified in the order as their ownership and/or management interests in various out-of-state limited liability companies. In so ruling, the court found that such relief was warranted by the defendants’ refusal to produce documents related to their finances and their refusal to appear at depositions as ordered by the court.

It is long settled in New York that the fundamental rule in attachment proceedings is that “the res must be within the jurisdiction of the court issuing the process in order to confer jurisdiction” (National Broadway Bank v Sampson, 179 NY 213, 222 [1904]). Pursuant to that rule and for the following reasons, we reverse and vacate the order of attachment and the appointment of a receiver.

While the situs of the shares of a corporation is either “where the corporation exists” or where the shareholders are domiciled (Matter of Enston, 113 NY 174, 181 [1889]; Sweeney, Cohn, Stahl & Vaccaro v Kane, 6 AD3d 72, 79 [2004], Iv dismissed 3 NY3d 751 [2004]), with respect to intangible interests such as debts and interests in corporate stock, the question whether the res is within the jurisdiction of the court issuing the process is less easily determined (Sampson, 179 NY at 223). Nevertheless, an attachment of a debt or other intangible property can only be effected as against the debtor or obligor by service upon him or her when he or she is domiciled within the state (id. at 223-224).

The mere fact that the order of attachment in this case was served upon defendant Mitchell, a resident and domiciliary of Florida, who was in New York temporarily solely to attend his deposition and does not dispute that he is the proper garnishee within the meaning of CPLR 5201 (c) (1), does not establish the situs of the res, i.e., defendants’ ownership and/or management interests, if any, in 23 entities, including Delaware, Georgia and Florida limited liability companies and a Florida corporation of which Mr. Mitchell is the sole shareholder, in New York.

The CPLR does not address the situs of such intangible property for attachment purposes (see ABKCO Indus. v Apple Films, 39 NY2d 670, 675 [1976]). As noted by Chief Judge Cardozo more than 75 years ago:

“The situs of intangibles is in truth a legal fiction, but there are times when justice or convenience requires that a legal situs be ascribed to them. The locality selected is for some purposes, the domicile of the creditor; for others, the domicile or place of business of the debtor, the place, that is to say, where the obligation was created or was meant to be discharged; for others, any place where the debtor can be found. At the root of the selection is generally a common sense appraisal of the requirements of justice and convenience in particular conditions” (Severnoe Sec. Corp. v London & Lancashire Ins. Co., 255 NY 120,123-124 [1931] [citations omitted]).

Since a limited liability company is a hybrid of a corporation and a limited partnership, owners of membership shares or interests not represented by certificates in a limited liability company should have rights comparable to those of corporate shareholders and limited partners (see Bischoff v Boar’s Head Provisions Co., Inc., 436 F Supp 2d 626, 632 [SD NY 2006]). In National Broadway Bank v Sampson (179 NY at 219), the Court held that an interest in a limited partnership—as with a corporation—is situated where the partnership is formed and operates.

The dissent acknowledges that, “[i]n order to be subject to attachment, property must be within the court’s jurisdiction” (quoting Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Advanced Empl. Concepts, 269 AD2d 101, 101 [2000]) and that, unlike intangible property, “[t]angible personal property obviously has a unique location and can only be attached where it is” (quoting ABKCO Indus., 39 NY2d at 675). The dissent then relies on Harris v Balk (198 US 215 [1905]) for the proposition that the situs of a debt is wherever the debtor can be found. However, although the Harris Court found that the situs of the intangible ,in that case (an oral promise to repay a $180 debt) had been fixed, “the same intangible may not have the same situs in other contexts” (Siegel, NY Prac § 487, at 826 [4th ed]). The dissent also neglects to point out that the bank accounts unsuccessfully sought to be attached in Matter of National Union (supra) clearly were intangible property.

While recognizing that defendants’ recitation of the law regarding the court’s lack of jurisdiction over the interests sought to be attached was correct, the court nevertheless found it unpersuasive because plaintiff, rather than using the provisional remedy of attachment for jurisdictional purposes, was seeking to use it as a security device to ensure that any money judgment it obtained would be satisfied. However, whether it is being used for purposes of obtaining in rem or quasi in rem jurisdiction or for purposes of obtaining security for a potential money judgment against a nondomiciliary defendant, given the facts of this case, the fundamental principles governing the provisional remedy of attachment and the situs of intangible property are the same.

As noted by the Commercial Division, defendants voluntarily submitted to the jurisdiction of the court pursuant to the terms of the guaranty of payment sued upon. It is also undisputed that neither Mr. Mitchell and the other nondomiciliary defendants nor any of the nondomiciliary entities in which they have or are claimed to have an attachable interest have any tangible or intangible property in New York. Defendants’ only apparent assets are commercial properties located in the states where the aforementioned entities are registered or incorporated. Thus, applying the foregoing principles, we find that it was error to grant plaintiffs motion to confirm the ex parte order of attachment previously issued by the court.

Likewise, it is equally well settled that where a judgment relates strictly to the internal affairs and management of a foreign corporation, or in this case a foreign limited liability company, “the court should decline jurisdiction [to appoint a receiver] because such questions are of local administration, and should be relegated to the courts of the State or country under the laws of which the corporation [or in this case limited liability company] was organized” (Acken v Coughlin, 103 App Div 1, 3 [1905]). Instead of appointing a receiver of defendants’ ownership and/or management interests in the foreign entities with the power to assume any management role they may have in those entities and authorizing him to seek the aid of the courts of those states in which the real estate is located in executing his duties as receiver, plaintiff, the now judgment creditor, should have been relegated to the states of the companies’ situses where it could have receivers appointed upon a proper showing of necessity (see Matter of Burge [Oceanic Trading Co.], 282 App Div 219 [1953], affd 306 NY 811 [1954]).

Finally, in determining whether the appointment of a receiver constitutes a provident exercise of discretion, we consider the “alternative remedies available to the creditor,” “the degree to which receivership will increase the likelihood of satisfaction,” and “the risk of fraud or insolvency if a receiver is not appointed” (Matter of Chlopecki v Chlopecki, 296 AD2d 640, 641 [2002], quoting United States v Zitron, 1990 WL 13278, *1, 1990 US Dist LEXIS 1049, *2 [SD NY 1990]). Here, at the time the receiver was appointed, defendants were contemporaneously restrained pursuant to CPLR 5229 from transferring or otherwise disposing of their assets, including their interests, if any, in the nondomiciliary companies, and that part of the supplemental order appealed from is affirmed.

Accordingly, the order of the Supreme Court, New York County (Charles E. Ramos, J.), entered February 8, 2008, which, inter alia, granted plaintiffs motion to confirm an order of attachment, should be reversed, on the law, without costs, plaintiffs motion to confirm the order of attachment denied and the ex parte order of attachment, same court and Justice, dated September 25, 2007, vacated. The order and supplemental order of the same court and Justice, entered April 7, 2008, which, inter alia, granted plaintiffs motion for the appointment of a receiver, and authorized the receiver to exercise dominion and control over certain designated property, should be modified, on the law, the motion for the appointment of a receiver denied, the order and supplemental order vacated except the tenth decretal paragraph of the supplemental order which restrains defendants from disposing of or diverting their ownership and/or management interests in the entities designated in subsections (a), (b), (c), (d), and (e) of the first decretal paragraph in the supplemental order, and otherwise affirmed, without costs.

Motion seeking leave to enlarge record denied.