[*1]
Sunbelt Rentals, Inc. v Elim Gospel Tabernacle, Inc.
2015 NY Slip Op 50993(U) [48 Misc 3d 1206(A)]
Decided on July 2, 2015
Supreme Court, Kings County
Edwards, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 2, 2015
Supreme Court, Kings County


Sunbelt Rentals, Inc., Plaintiff,

against

Elim Gospel Tabernacle, Inc., ELIM INTERNATIONAL and JOHN DOE "1" THROUGH JOHN DOE "5", Defendants.




504538/2015



The plaintiff was represented by Raymond A. Castronovo, Esq. of Forchelli. Curto, Deegan, Schwartz, Mineo & Terrana. LLP, 333 Earle Ovington Boulevard, Suite 1010, Uniondale, NY.



The defendant was represented by David Morisset, Esq. of the Law Offices of David Morisset P.C., 2809 Church Avenue, Brooklyn, NY.


Genine D. Edwards, J.

In an action for replevin and damages for breach of a rental contract, plaintiff moves, pursuant to CPLR § 7102, to recover a 176KW generator, a 144KW generator, and cables (the "equipment") now in the possession of the defendants, ELIM Gospel Tabernacle, Inc. and ELIM International. Defendants oppose the motion.



Plaintiff alleges that, on or about March 2, 2014, defendants entered into a rental contract with ElecComm Power Services, Inc. ("ElecComm"), whereby ElecComm agreed to rent the equipment to the defendants (complaint ¶7). Sometime after the delivery of the equipment, plaintiff allegedly purchased ElecComm and all of the rights, title, and interest in the equipment and the rental contract (complaint ¶8).



Plaintiff maintains that defendants have been in default of the rental contract since September 5, 2014. To support this claim, plaintiff submits as evidence a form entitled "Delivery" indicating defendants as the addressee, but fails to provide a rental contract illustrative of the terms and conditions to which the parties agreed to be bound. Plaintiff also submits an affidavit from its corporate collections manager, to serve as proof of plaintiff's superior interest in the equipment and the defendants' default. The complaint as well as the affidavit maintain that an aggregate balance of $97,813.81 is due and owing. Plaintiff did not submit any of its billing statements that defendants received, accepted, and retained.



The defendants oppose plaintiff's motion, asserting that plaintiff lacks standing to [*2]maintain the action and, even if standing is proper, the record contains insufficient evidence of a bona fide rental agreement between the plaintiff and the defendants.



On a motion for an order of seizure, the movant must (1) demonstrate a probability of success on its cause of action for replevin and (2) the absence of a valid defense to its claim. Americredit Fin. Servs., Inc. v. Decoteau, 103 AD3d 761, 959 N.Y.S.2d 548 (2d Dept. 2013); Siemens Med. Solutions USA, Inc. v. Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 AD3d 620, 953 N.Y.S.2d 162 (2d Dept. 2012). The order is not a final disposition, but it is a pendente lite order made during a pending action where the plaintiff established a superior right to the chattel it wishes to recover. Southeast Fin., LLC v. Broadway Towing, Inc., 117 AD3d 715, 984 N.Y.S.2d 606 (2d Dept. 2014), quoting Americredit, 103 AD3d at 762, 959 N.Y.S.2d at 549; Nissan Motor Acceptance Corp. v. Scialpi, 94 AD3d 1067, 944 N.Y.S.2d 160 (2d Dept. 2012).



Here, plaintiff failed to demonstrate a probability of success on the merits. An assignment is a transfer of some right or interest from one to another, and unless in some way qualified, it is the transfer of one whole interest in an estate, chattel, or thing. In re Stralem, 303 AD2d 120, 758 N.Y.S.2d 345 (2d Dept. 2003), quoting Griffey v. New York Cent. Ins. Co., 100 NY 417, 3 N.E. 309 (1885). An assignment is valid when the assignor is divested of all control over the thing assigned and only then may the assignee step into the assignor's shoes. In re Stralem, 303 AD2d at 122. Plaintiff did not provide an assignment between itself and ElecComm to support allegations of a transfer whereby plaintiff acquired all rights to an agreement made between ElecComm and defendants.



Further, plaintiff alleged that a rental agreement existed, but the only evidence to support that contention was an affidavit from its manager stating such agreement existed and an aggregate balance of $97,813.81 remained due. The record is not fully developed and makes it impossible for this Court to determine whether a rental agreement actually exists. For plaintiff to request an order of seizure without (1) credible proof of an agreement between the parties, (2) billing statements sent to defendants, and (3) absent evidence of a valid assignment between itself and ElecComm makes the request untenable. As the defendants assert, the evidence in the record is merely speculative, and the relief requested is a drastic step for a claimant who may not be entitled to any remedy at all. Accordingly, plaintiff's motion for an order of seizure is denied.



This constitutes the decision and order of this court.

ENTER,



___________________________

Hon. Genine D. Edwards

A. J. S.C.