UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1999
(Argued: August 7, 2000 Decided:
October 11, 2000)
Docket No. 99-9406
CONTICHEM LPG, a division of ContiGroup
PARSONS SHIPPING CO., LTD.,
DEN NORSKE BANK ASA,
Before: CALABRESI, CABRANES and
POOLER, Circuit Judges.
Appeal from order of the United
States District Court for the Southern District of New York (McKenna,
J.) denying plaintiff's motion for preliminary injunction
and order of attachment and vacating temporary restraining order
and order of maritime attachment.
ANTHONY J. MAVRONICOLAS, Hill Rivkins
& Hayden, LLP,
NY, NY, for Petitioner-Appellant.
ARMAND M. PARÉ, JR., Nourse
& Bowles, LLP, NY, NY,
POOLER, Circuit Judge:
ContiChem LPG ("ContiChem")
appeals from the October 27, 1999, Memorandum and Order of the
United States District Court for the Southern District of New
York (Lawrence M. McKenna, Judge) denying its motion for
a preliminary injunction and for an order of attachment and granting
respondent Parsons Shipping, Ltd.'s ("Parsons' ") motion
to vacate the temporary restraining order and order of maritime
attachment granted October 13, 1999. ContiChem primarily argues
that the district court's refusal to grant provisional remedies
in aid of arbitration under New York Civil Practice Law and Rules
("C.P.L.R.") 7502(c) on the ground that no arbitration
was pending in New York was erroneous. Furthermore, ContiChem
contends that the district court improperly denied provisional
remedies under C.P.L.R. 6201 and 6210 on the ground that there
was no judgment debtor involved. Finally, ContiChem maintains
that it was entitled to a maritime attachment under Admiralty
Supplemental Rule B(1). For the reasons set forth below, we reject
ContiChem's contentions and affirm the order of the district
At the root of this dispute is ContiChem's
attempt to obtain security in New York for damages resulting
from a breach of a charter party. We are asked to consider whether
ContiChem could avail itself of state law provisional remedies
in aid of arbitration when no arbitration was pending in New
York; the parties had expressly agreed in the charter party to
arbitration in London; and ContiChem used a temporary restraining
order and attachment order to secure funds that could not otherwise
be reached by a maritime attachment.
On August 14, 1999, ContiChem and
Parsons entered into a charter party for the ship M/V World Rainbow.
Under the charter party, Parsons agreed to deliver its ship to
ContiChem at ContiChem's nominated port of Ras Tanura, Saudi
Arabia for a voyage in which it would carry 40,500 metric tons
of cargo for ContiChem. Parsons, the owner of the ship, warranted
the vessel's "being seaworthy and having all pipes, pumps
and compressors, boiler coils in good working order, and being
in every respect fitted for the voyage."The charter party
specified "[t]he place of General Average and arbitration
proceedings to be London." The underlying breach of charter
party claim stems from ContiChem's contentions that Parsons'
vessel was unseaworthy and its tanks were unable to cool down
sufficiently to enable loading of ContiChem's cargo. This problem
delayed loading, which allegedly resulted in damages to ContiChem
ContiChem attempted to obtain security
for its claims in a number of ways. First, ContiChem had the
M/V World Rainbow arrested while at anchorage in Yosu, South
Korea. Although the assessed value of the ship was $1.95 million,
it was encumbered by a first preferred mortgage of $5 million
and a second preferred mortgage of $1.3 million, both in favor
of Den Norske Bank ASA ("Den Norske").
Next, on October 13, 1999, ContiChem
petitioned the United States District Court for the Southern
District of New York for an order pursuant to 9 U.S.C. §
1 et seq. compelling Parsons to proceed with arbitration
in London. ContiChem also sought an order of attachment
pursuant to Supplemental Admiralty Rule B(1) of Parsons' bank
accounts as security for its arbitration claim against Parsons.
ContiChem stated that it was due to make a $722,145.09 telephonic
transfer to Unibank, S.A., one of the banks from which attachment
was sought, for the benefit of Parsons' agent. ContiChem also
sought a temporary restraining order and/or preliminary injunction
prohibiting garnishee Unibank from transferring Parsons' assets
out of the district pending arbitration. In the alternative,
ContiChem sought a temporary restraining order and preliminary
injunction pursuant to the equitable and discretionary powers
of the court under the common law and Rules 64 and 65 of the
Federal Rules of Civil Procedure.
On October 13, 1999, the district
court issued an order directing Parsons to show cause before
the court on October 25, 1999, why an order should not be issued
pursuant to Rules 6201, 6210 and 7502(c) of the C.P.L.R. and
Federal Rule of Civil Procedure 65(b) temporarily restraining
garnishee Unibank from transferring Parsons' money out of the
district. The court issued a temporary restraining order that
prohibited Unibank from transferring or removing Parsons' property
from the district pending the October 25 hearing. The court further
ordered service of maritime attachment and garnishment on Unibank,
so as to prevent removal of Parsons' property from the district.
The following day ContiChem served the temporary restraining
order on Unibank. ContiChem advised Unibank that it was due to
make a freight payment to Parsons' agent's account there, but
that Unibank could not transfer those funds to Den Norske due
to the temporary restraining order it had served. Thereafter,
ContiChem wired the freight payment to Unibank and later served
the process of maritime attachment on Unibank.
Finally, one day after serving the
order to show cause, ContiChem also sought to freeze assets of
Parsons in London.
Upon Parsons' request, the return
date of the motion in New York was accelerated and the district
court conducted a hearing on October 22, 1999. On that date,
Den Norske moved by order to show cause to intervene, claiming
that it was entitled to the restrained funds. Parsons and Den
Norske asked the district court to vacate the temporary restraining
order as well as the order of maritime attachment. In its Memorandum
and Order of October 27, 1999, the district court determined
that it was without equitable power to grant the relief ContiChem
sought because it had no judgment against Parsons. See
In the Matter of the Arbitration Between ContiChem LPG and
Parsons Shipping, Ltd ("ContiChem"), 1999
WL 977364, at *2 (S.D.N.Y. Oct. 27, 1999). Pursuant to Supplemental
Rule B(1) relating to maritime and admiralty claims, Judge McKenna
then considered whether an order of attachment and/or injunctive
relief were permissible under New York law. The district court
concluded that ContiChem was not entitled to an order of attachment
or a temporary restraining order under C.P.L.R. 6201 and 6210
because "petitioner was not a judgment debtor." Id.
In addition, the district court concluded that ContiChem could
not avail itself of C.P.L.R. 7502(c), which authorizes a court
to consider an application for an order of attachment or for
a preliminary injunction in conjunction with an arbitrable controversy,
because the underlying dispute was arbitrable in the United Kingdom.
See id. Therefore, the district court denied petitioner's
motion for a preliminary injunction and order of attachment and
granted Parsons' motion to vacate both the temporary restraining
order and maritime attachment order issued on October 13, 1999.
See id. at *3. ContiChem now appeals.
We first address Parsons' contention
that we do not have appellate jurisdiction in this case because
the district court's order vacating the temporary restraining
order is not appealable. According to ContiChem, appellate jurisdiction
is based on the district court's order vacating the order of
maritime attachment and denying a preliminary injunction. In
addition, ContiChem claims that regardless of the label appended
to it, the order is appealable because it conclusively determined
whether ContiChem could hold security in New York pending arbitration
of its claims in London and the order of attachment would be
otherwise unreviewable since the merits of the underlying claim
would be adjudicated in London.
We agree with Parsons that the district
court's order vacating the temporary restraining order is not
appealable. SeeRomer v. Green Point Sav. Bank, 27 F.3d
12, 15 (2d Cir. 1994) ("As a TRO is interlocutory and is
not technically an injunction, it is ordinarily not appealable.").
It is only in limited circumstances, when the action "might
have a serious, perhaps irreparable, consequence and [ ]the order
can be effectually challenged only by immediate appeal"
that we may exercise appellate jurisdiction. Carson v. American
Brands, Inc., 450 U.S. 79, 84 (1981) (internal quotations
marks omitted). Because those circumstances do not exist here,
we lack jurisdiction over that portion of the appeal challenging
vacatur of the temporary restraining order. Therefore, our review
in this case is limited to determining whether the district court
abused its discretion in vacating the maritime attachment order
and denying provisional remedies under state law. "Errors
of law or fact may constitute such abuse." SG Cowen Sec.
Corp. v. Messih, 224 F.3d. 79, 2000 WL 1174969, at *2 (2d
Cir. Aug. 18, 2000).
As a preliminary matter, we agree
with the district court's determination that because ContiChem
did not have a judgment against Parsons, the court had no equitable
power to issue a preliminary injunction preventing any entity
from disposing of Parsons' assets pending arbitration of the
dispute. SeeGrupo Mexicano de Dessarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 333, (1999) (district court
is without power pursuant to Federal Rule of Civil Procedure
65 to order injunctive relief preventing party from disposing
of assets pending adjudication of contract claims for money damages).
Absent a prior judgment, the district court properly denied ContiChem's
request. However, ContiChem also sought relief pursuant to Supplemental
Rule B(1) of the Rules for Certain Admiralty and Maritime Claims,
which supplement the Rules of Civil Procedure. Rule B(1) provides
for prejudgment maritime attachment and garnishment in maritime
in personam actions. In addition Rule B(1) authorizes a plaintiff
pursuant to Federal Rule of Civil Procedure 4(e) to "invoke
the remedies provided by state law for attachment and garnishment
or similar seizure of the defendant's property." Supp. Rule
B(1). We first consider whether the district court properly refused
to grant pre-arbitration remedies under state law and then turn
to federal law.
A. State Remedies
ContiChem rests its claim to provisional
remedies partly on C.P.L.R. 7502, under which a court may consider
an application for an attachment order or preliminary injunction
in connection with an arbitrable controversy. Specifically, Rule
The supreme court in the county
in which an arbitration is pending, or, if not yet commenced,
in a county specified in subdivision (a), may entertain an application
for an order of attachment or for a preliminary injunction in
connection with an arbitrable controversy, but only upon the
ground that the award to which the applicant may be entitled
may be rendered ineffectual without such provisional relief.
The provisions of articles 62 and 63 of this chapter shall apply
to the application, . . . except that the sole ground for the
granting of the remedy shall be as stated above.
N.Y. C.P.L.R. 7502(c). Although
the district court initially granted ContiChem's request for
a temporary restraining order and order of attachment on October
13, 1999, it subsequently vacated the temporary restraining order,
concluding that C.P.L.R. 7502(c) applies only to arbitration
proceedings in New York. SeeContiChem, 1999 WL 977364,
ContiChem asks this court to vacate
that decision on the ground that the district court interpreted
Rule 7502(c) too narrowly and unduly restricted its application
to cases in which arbitration proceedings are pending in New
York, in contravention of the language of the statute, the legislative
history and spirit of the New York Arbitration Act, and case
law. According to ContiChem, the district court ignored the language
of Rule7502(a), which supplies a specific venue provision:
A special proceeding shall be used
to bring before a court the first application arising out of
an arbitrable controversy which is not made by motion in a pending
action. The proceeding shall be brought in the court and county
specified in the agreement; or, if none be specified, in a court
in the county in which one of the parties resides or is doing
business, or, if there is no such county, in a court in any county;
or in a court in the county in which the arbitration was held.
N.Y. C.P.L.R. 7502(a) (repealed
by 2000 Session Laws of New York Ch. 226, which substituted a
new subdivision (a) that would not alter the outcome of this
appeal). ContiChem juxtaposes this provision with its assertion
that ContiChem's parent company maintains offices in New York
County and, with little other effort to connect those two pieces
of information, contends that it satisfied the venue provisions
of the statute. Parsons responds that C.P.L.R. 7502(c) is restricted
by its terms to provisional remedies ordered by a "court
in the county in which an arbitration is pending, or, if not
yet commenced, in a county specified in subdivision (a)."
Here, Parsons maintains, the parties "specified" that
arbitration would take place in London, thus rendering subdivision
(c) inapplicable and subdivision (a) irrelevant.
ContiChem assumes that C.P.L.R.
Article 75 is available to it, even though it agreed to arbitrate
its disputes with Parsons in London pursuant to an arbitration
agreement that is subject to the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, 9
U.S.C. § 201 et seq. ("Convention").
However, these facts raise several issues that must be considered
in turn. In analyzing ContiChem's claim for relief under Rule
7502(c), it is helpful to step back and consider the landscape
of rules before us. In New York, the leading case on attachments
in aid of arbitration is Cooper v. Ateliers de la Motobecane,
S.A., 57 N.Y.2d 408 (1982). In Cooper, the New York
Court of Appeals refused to grant a pre- arbitration attachment
in an international matter involving litigants governed by the
Convention, finding that pre-award remedies violated the Convention.
See id. at 416. However, the New York Court of
Appeals noted federal arbitration law "specifically permits
attachment to be used in admiralty cases." Id. at
415. ContiChem seizes on the apparent exception for maritime
cases to argue that Cooper is not a barrier to application
of C.P.L.R. Article 75.
While that may be true, it is not
dispositive. The fact that Cooper may not be a barrier
does not mean that ContiChem is automatically entitled to relief
under Rule 7502(c). ContiChem blurs the lines between the domestic
arbitrations governed by Article 75 and the foreign arbitration
cases in which pre-arbitration remedies may, in limited circumstances,
be available.1 Clearly,
if this case did not involve a maritime attachment, Cooper
would govern and prohibit pre-arbitration attachment in a case
governed by the Convention. See id., at 416. On
the other hand, if this case involved a domestic arbitration,
not governed by the Convention, we would have little trouble
concluding that Rule 7502(c) was available to ContiChem, provided
it otherwise satisfied the statute's requirements. In this case,
however, ContiChem seeks a maritime attachment in aid of a foreign
arbitration governed by the Convention, which raises the issue
of whether the exception set forth in Cooper for provisional
relief in aid of maritime arbitration also permits relief under
the state law provisions at issue here. However, we need not
directly address this issue, because even if Cooper is
not a bar to the application of Rule 7502(c) here, ContiChem
cannot avail itself of this provision because it is limited to
domestic arbitrations and ContiChem and Parsons explicitly agreed
to arbitration in London.
ContiChem's appeal to the legislative
history and spirit of the New York arbitration statute is also
unavailing. ContiChem passionately contends that the district
court's "parochial" reading of Rule 7502(c) "clearly
undermines the policy" of New York's arbitration statute,
which was promulgated in an effort to reverse the common law's
longtime hostility to arbitration. ContiChem urges that the district
court's narrow interpretation of the statute would thwart the
arbitration process by prohibiting parties from obtaining security
when an arbitration award otherwise might be rendered ineffective.
As Parsons points out, the legislative
history of C.P.L.R. 7502(c) reinforces that relief under that
rule is available only for domestic arbitrations. The Advisory
Committee notes to C.P.L.R. 7502(c) reflect the drafters' intent
not to affect proceedings governed by international agreements
such as the Convention. The Advisory Committee specifically stated
there is no inconsistency between
the proposed amendment [7502(c)] and the decision of the Court
of Appeals in Cooper v. At[e]liers de la Motobecane, S.A.,
57 N.Y.2d 408 (1982), where a pre-arbitration attachment was
disallowed in a matter involving international litigants governed
by the United Nations Convention in Recognition and Enforcement
of Foreign Arbitral Awards. The amendment would not affect proceedings
governed by such international agreements [i.e. the Convention].
1985 Report of the Advisory Committee
on Civil Practice, reprintedin McKinney's 1985 Session
Laws at 3432 (footnote omitted). Thus, although C.P.L.R. 7502(c)
was enacted after Cooper, it was not intended to eviscerate
Cooper. See Drexel Burnham Lambert, Inc. v.
Ruebsamen, 531 N.Y.S.2d 547, 551-52 (1st Dep't 1988). Perhaps
even more compelling in this case is the Committee's explicit
reference to domestic arbitration. Rule 7502(c), "by providing
the preliminary relief of attachment or injunction only
if the arbitration award might otherwise be rendered ineffectual,
is designed to make the domestic arbitration remedy more efficacious,
. . . accords with the spirit of
the Cooper decision." 1985 Report of the Advisory
Committee on Civil Practice, reprintedin McKinney's 1985
Session Laws at 3432. Therefore, contrary to ContiChem's assertion,
the legislative history of Rule 7502(c) supports the plain language
of the statute, which precludes courts applying New York law
from considering provisional remedies in aid of foreign arbitrations.
In sum, we conclude that although
this case involves a maritime attachment, and Cooper is
therefore not necessarily a bar to relief, ContiChem nevertheless
is not entitled to provisional remedies in aid of arbitration
under C.P.L.R. 7502(c) because this is not a domestic arbitration.
The charter party in this case specifically provided for arbitration
of disputes in London, and Rule 7502 by its terms applies only
to domestic arbitrations. Therefore, we reject ContiChem's attempt
to expand the purview of this statute beyond the limits of its
language and affirm the district court's conclusion that C.P.L.R.
7502(c) does not permit provisional remedies in aid of a maritime
arbitration in London.
Rule 7502(c) states that "[t]he
provisions of articles 62 and 63 of [the C.P.L.R.] shall apply
to the application" for relief in aid of arbitration, provided
that the award otherwise would be rendered ineffective.2 In this case, the district court
vacated the temporary restraining order it had granted pursuant
to Rule 6210 on the ground that ContiChem was not a judgment
debtor. SeeContiChem, 1999 WL 977364 at *2. As we noted
above, we are without jurisdiction to consider the order vacating
the temporary restraining order. Moreover, ContiChem did not
assert an independent basis for seeking attachment under Article
62. It necessarily concedes that "[p]rocedurally, C.P.L.R.
§ 7502(c) specifically incorporates articles 62 and 63 of
the C.P.L.R. as the procedural mechanism for obtaining the provisional
remedies in aid of arbitration of C.P.L.R. § 7502(c)."
ContiChem nevertheless asserts that it was entitled to an attachment
order under Rule 6210 because C.P.L.R. 6202 modified the definition
of garnishee in the context of attachments, so as to make Unibank
a proper garnishee even though there was no extant judgment.
Having determined that ContiChem cannot bring an application
under Rule 7502 because it agreed to arbitration in London, we
also find that it cannot seek attachment under Rule 6210, because
the court cannot entertain the Rule 7502 application.
B. Federal Remedies
ContiChem also appeals the district
court's order vacating the order of maritime attachment it granted
pursuant to Supplemental Rule B on October 13, 1999. We now consider
whether it was within the court's discretion to do so once it
determined that the temporary restraining order that kept Parsons'
money in the district was invalid. In essence, we must determine
whether ContiChem could accomplish indirectly, by means of an
order restraining to-be-attached property, that which it could
not do directly in light of the well-established prohibition
against maritime attachments of after-acquired property. See
Reibor Int'l Ltd. v. Cargo Carriers (KACZ-Co.) Ltd., 759
F.2d 262, 268 (2d Cir. 1985).
"Maritime attachment is by
any test a characteristic feature of the general maritime law.
" Aurora Maritime Co. v. Abdullah Mohamed Fahem &
Co., 85 F.3d 44, 47 (2d Cir. 1996) (internal quotation marks
omitted). " `[T]he use of the process of attachment in civil
causes of maritime jurisdiction by courts of admiralty . . .
has prevailed during a period extending as far back as the authentic
history of those tribunals can be traced.' Rule B is simply an
extension of this ancient practice" Id. at 47-48
(quoting Atkins v. The Disintegrating Co., 85 U.S. (18
Wall.) 272, 303 (1873)). Rule B(1) provides that "[w]ith
respect to any admiralty or maritime claim in personam a verified
complaint may contain a prayer for process to attach the defendant's
goods and chattels, or credits and effects in the hands of garnishees
. . . if the defendant shall not be found within the district."
Supp. Rule B(1). Although a plaintiff seeking attachment must
supply, along with its verified complaint, an affidavit stating
that defendant cannot be found within the district, little else
is required and there need only be a hearing after the attachment
is served. See Rule B(1). However, Rule B(1) relief is
not valid where the attachment and garnishment is served before
the garnishee comes into possession of the property. See
Reibor, 759 F.2d at 263, 268.
In Reibor, we considered
as a matter of first impression whether maritime garnishments
can extend to property not yet in the hands of the garnishee.
See id. In an action claiming breach of a shipowner's
obligations under its charter, Reibor sought to attach funds
to be paid by a third party to the shipowner at a bank in New
York. The third party had issued instructions to the bank to
remit a portion of the payment to a bank in Montreal. Finding
no controlling admiralty rule, the Reibor court adopted
the New York rule that an attachment is void unless the garnishee
is in possession of property belonging to the defendant or owes
a debt to the defendant at the time the order is served. See
id. at 266 (citing C.P.L.R. 6214(b); McLaughlin, Practice
Commentaries, C6214:3). The Reibor court noted the special
considerations involved in bank transfers where allowing maritime
attachment and garnishment before the bank receives the funds
would disrupt the free flow of commerce by forcing banks to "search
high and low . . . to determine whether any transfer related
to a maritime process of attachment." Id., at 268.
governs here. After other unsuccessful attempts at obtaining
security, ContiChem attempted to obtain security in New York
for its arbitration claim in London by attaching Parsons' funds
in Unibank. ContiChem alleged in its petition to the district
court that its attempts to obtain security after arresting the
M/V World Rainbow had failed. However, ContiChem also stated
that it was "due to make a freight payment in the amount
of $722,145.09 via telephonic transfer to an account at Unibank
A/S, 13-15 West 54th Street, New York, New York, for
the account of Den Norske Bank ASA, London Branch, as agent for
Beckworth Enterprises, Inc. who are the managers of the M/V World
Rainbow." Without the relief ContiChem requested, Parsons'
funds would be removed from the jurisdiction, as Unibank would
automatically transfer them to Den Norske in London. In addition,
ContiChem could locate no other assets of Parsons in New York
and Parsons did not have offices or an agent for service of process
in New York.
The district court properly vacated
the attachment order. We hold that ContiChem improperly attempted
to circumvent the rule against attachment of property not yet
in Unibank's possession, seeReibor 759 F.2d at 268, by
using a temporary restraining order that the court subsequently
found had been issued in error to prohibit the transfer of Parsons'
funds out of the district; making a payment to Unibank; and,
once the funds ceased to be a moving target, serving the maritime
attachment and garnishment. In seeking to attach Parsons' funds,
ContiChem could not escape the rule in Reibor. If ContiChem
made the freight payment to Unibank first, before obtaining the
attachment order, Unibank would automatically transfer the funds
to Den Norske in London, pursuant to already existing transfer
instructions, and the funds would be gone. Under Reibor,
however, ContiChem could not serve the attachment and garnishment
order on Unibank when the bank was not yet in possession of the
funds. To circumvent this problem, ContiChem sought, and the
district court granted, a temporary restraining order prohibiting
Unibank from transferring Parsons' money out of the district.
The district court later learned that ContiChem served the temporary
restraining order on Unibank prior to wiring its freight payment.
ContiChem informed Unibank that it was going to wire its freight
payment, but that Unibank should not transfer the funds to Den
Norske due to the temporary restraining order. After it wired
the funds, ContiChem served the order of attachment and garnishment,
and it thus halted what otherwise would have been an instantaneous
transfer of funds out of the district.
We conclude that it was well within
the district court's discretion to vacate the maritime attachment
and garnishment order, having determined that it had erroneously
issued the temporary restraining order that anchored the funds
in New York. Absent the temporary restraining order, which the
district court vacated and whose vacatur we lack power to review,
there could be no attachment of funds in this case under Reibor.
Therefore, the district court properly vacated the order of attachment.
Although ContiChem's attempt to obtain security in New York failed,
ContiChem is not without recourse to seek relief by appropriate
means in an appropriate jurisdiction.
For the foregoing reasons, we affirm
the order of the district court denying petitioner's request
for a preliminary injunction and order of attachment and vacating
the attachment order issued on October 13, 1999.
Moreover, ContiChem argues
that this court's decision in Borden, Inc. v. Meiji Milk Prods.
Co., 919 F.2d 822 (2d Cir. 1990), demonstrates this court's
willingness to grant provisional remedies even in a case where
the Convention applies. In Borden this court held that
the district court had subject matter jurisdiction to consider
an application for preliminary injunction in aid of arbitration
and "[e]ntertaining an application for such a remedy, moreover,
is not precluded by the Convention but rather is consistent with
its provisions and its spirit." Id. at 826.
New York C.P.L.R. 6210 provides
in part: "Upon a motion on notice for an order of attachment,
the court may, without notice to the defendant, grant a temporary
restraining order prohibiting the transfer of assets by a garnishee
as provided in subdivision (b) of section 6214." A "garnishee"
is defined in part as "a person other than the judgment
debtor who has property in his possession or custody in which
a judgment debtor has an interest." N.Y. C.P.L.R. §