Dafeng Hengwei Textile Co., Ltd. v. Aceco Industrial & Commercial Corporation et al
Filing
72
ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the Court adopts the 56 August 7, 2014 report and recommendations of Judge Viktor V. Pohorelsky. The Court (1) grants Rockaway's motion to vacate the attachment of 25 Gracewood Drive, Manhasset, New York, and (2) denies the motion for Rule 11 sanctions. Ordered by Judge Margo K. Brodie on 10/20/2014. (Krause, Aimee)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------DAFENG HENGWEI TEXTILE CO., LTD.,
Plaintiff,
MEMORANDUM & ORDER
13-CV-5829 (MKB) (VVP)
v.
ACECO INDUSTRIAL & COMMERCIAL
CORPORATION, ACECO, INC., DAVID LIU a/k/a
DAVID Z. LIU a/k/a ZUOWEI LIU, and CHANGZHU YU a/k/a CEE CEE YU, individually and
as agents of Aceco Industrial & Commercial
Corporation and Aceco, Inc.,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Dafeng Hengwei Textile Co., Ltd. filed the above-captioned action against
Defendants Aceco Industrial & Commercial Corporation, Aceco, Inc., David Liu and Chang-Zhu
Yu on October 24, 2013. Plaintiff asserts claims against Aceco for breach of contract and for
account stated, and seeks to hold Liu and Yu liable through a veil-piercing theory of liability. By
order dated October 30, 2013, the Court granted Plaintiff an ex parte prejudgment order of
attachment (the “Attachment Order,” Docket Entry No. 5), allowing the United States Marshal to
levy against properties in which Defendants have an interest. On or about February 11, 2014,
Plaintiff caused the U.S. Marshal to levy on a property located at 25 Gracewood Drive,
Manhasset, New York 11030 (the “Property”).1 Rockaway Associates (“Rockaway”), a
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The notice of attachment filed against the Property with the Clerk in Nassau County
misidentified the property subject to attachment. Plaintiff has asked that the Court permit it to
file a corrected notice of attachment. In light of the Court’s decision to adopt the Report and
partnership which is not a party in this action, as owner of the Property, has moved to vacate the
Attachment Order levied against the Property, to quash a subpoena served on one of its banks, to
seek a protective order, and for sanctions against Plaintiff pursuant to Rule 11 of the Federal
Rules of Civil Procedure. (Docket Entry No. 44.) The Court referred the motion to vacate and
for sanctions to Magistrate Judge Victor V. Pohorelsky for a report and recommendation.2 By
Report and Recommendation (“R&R”) dated August 7, 2014, Judge Pohorelsky recommended
that the Court grant Rockaway’s motion to vacate the Attachment Order levied against the
Property, and deny Rockaway’s motion for sanctions. (R&R, Docket Entry 56.) Plaintiff timely
filed an objection to the portion of Judge Pohorelsky’s R&R recommending that this Court grant
the motion to vacate, (Docket Entry No. 58), and Rockaway timely responded to Plaintiff’s
objections, (Docket Entry No. 60). No other objections were filed. For the reasons set forth
below, the Court adopts the R&R in its entirety.3
I.
Background
a.
Relevant parties and their relationships
Plaintiff is a textile manufacturer incorporated under the laws of the People’s Republic of
China. (Compl. ¶ 3.) Defendants Aceco Industrial & Commercial Corporation and Aceco, Inc.
Recommendation (R&R), the request to file a corrected notice of attachment is denied as moot.
2
The Court also referred the motion to quash a subpoena and to seek a protective order
to Judge Pohorelsky for a decision. Those motions are not currently before the Court.
3
Defendants Liu and Yu have separately moved to vacate the Attachment Order, and
their motion was addressed by a separate Report and Recommendation from Judge Pohorelsky.
(See Motion to Vacate Order of Attachment, Docket Entry No. 34; R&R, Docket Entry No. 57.)
The Court will issue a separate order addressing this motion.
2
(collectively, “Aceco”)4 are New York companies. Defendants Liu and Yu are directors and
shareholders of Aceco. (Compl. ¶¶ 8, 10.) From late 2009 through mid-2013, Aceco contracted
with Plaintiff for manufacture and delivery of textiles for resale in the United States. (Id. ¶ 12,
14.) Plaintiff now seeks recovery from all Defendants for breach of contract resulting from
unpaid invoices allegedly totaling $1,977,642.02. (Id. ¶ 82(a).)
Movant Rockaway, a non-party, is a New York partnership that has owned the Property
since 2005. Non-party Mo Dai Li owns a 99% interest in Rockaway (Decl. of Mo Dai Li in
Supp. of Mtn. to Vacate Order of Attachment, Quash Pl.’s Third Party Subpoena & Other Relief
(“Li Decl.”) ¶ 5, Docket Entry No. 44-1.) Rockaway claims that non-party Lea Tee owns the
remaining 1% interest in Rockaway. (Id.) Liu and Yu have used the Property as a residence, but
claim to have no current ownership interest in it or in Rockaway. It is undisputed that, at one
time, Liu and Yu had partnership interests in Rockaway. Rockaway contends that Liu and Yu
exchanged their interest in Rockaway for Li’s interest in Aceco sometime in 2012, prior to the
commencement of this action. (See Ex. 3, annexed to July 23, 2014 Declaration of Richard A.
Chen (“Chen Decl.”), Docket Entry No. 54-3.) Plaintiff contends that this is a “falsity.” (Pl.
Opp’n Mem. 13, Docket Entry No. 53.)
In 2005, Aceco was named as a guarantor for Rockaway’s $1.9 million mortgage on the
Property, and a later extension of that mortgage with China Citic Bank. (Li Decl. ¶ 6; Pl. Opp’n
Mem. 10–11.)
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According to the Complaint, Defendant Aceco Industrial & Commercial Corporation
merged with or changed its name to Aceco, Inc. at some point and Aceco, Inc. became the
successor in interest to Aceco Industrial & Commercial Corporation. (Compl. ¶ 6.)
3
b.
Alleged breach of contract
Pursuant to their contracts, Plaintiff manufactured textiles which were then sold and
delivered to Kmart Corporation at the direction of Aceco. (Compl. ¶ 17.) Through its remitting
bank and Aceco’s collecting bank, Plaintiff would submit invoices to Aceco for payment. (Id.
¶ 15.) Plaintiff alleges that when Aceco was unable to pay Plaintiff’s invoices, Aceco requested
payment extensions and promised future payment. (Id. ¶ 20.) Based on these promises, Plaintiff
continued to manufacture and ship goods for Aceco. (Id. ¶¶ 20-21.) According to the
Complaint, in early 2013, Aceco accumulated an unpaid overdue balance. (Id. ¶¶ 20-32.)
Despite repeated communications between the parties, the balance was not paid in full. (Id.
¶¶ 36-47.) Plaintiff alleges that this failure to pay was due in part to Liu and Yu’s failure to
respect corporate formalities, causing “Aceco to be undercapitalized to engage in the business for
which it was formed, [ ] with intent of avoiding obligations as a result of its ordinary business
operations.” (Id. ¶¶ 61, 63, 76, 78.)
Plaintiff alleges that Defendants breached their sales contract by “refusing to pay the
value of the goods that Plaintiff sold and delivered to” Aceco. (Id. ¶ 56). Plaintiff contends that
Defendants induced Plaintiff into accepting more purchase orders and manufacturing more
products for Aceco in early 2013, by promising to pay existing credit balances and pay for
additional shipments but ultimately failing to do so. Plaintiff further contends that Defendants
Liu and Yu have frustrated Plaintiff’s efforts to collect payment by refusing to arrange payment
of the substantial balance owed on the contract, and are fraudulently concealing or secreting
assets with the intent to defraud Plaintiff or otherwise frustrate the enforcement of a judgment.
(Pl. Opp’n Mem. 7.)
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c.
Notice of attachment of the Property and motion to vacate
On or about February 11, 2014, Plaintiff filed a notice of attachment against the Property.
Plaintiff contends that the Property is properly attachable because Liu, Yu and Aceco each have
an interest in the Property. Plaintiff contends that Liu and Yu are either still shareholders in
Rockaway, or have used Rockaway as part of a scheme to “divert[] and strip[] Aceco’s assets
and to shield themselves of personal liabilities.” (See Pl. Opp’n Mem. 12–14.) Plaintiff further
contends that Aceco’s guarantee on Rockaway’s mortgage gives Aceco an attachable interest in
the Property. (Pl. Opp’n Mem. 8–12.)
Rockaway seeks to have the attachment vacated in order to sell the Property and pay its
current debt. (Li Decl. ¶ 10).
II. Discussion
a.
Standards of Review
i.
Report and recommendation
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews the parts of the report and recommendation to which
the party objected under a de novo standard of review. Id.; see also Larocco v. Jackson, No. 10CV-1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those
portions of the recommended ruling to which no timely objections have been made, provided no
clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco,
2010 WL 5068006, at *2. The clearly erroneous standard also applies when a party makes only
conclusory or general objections, or simply reiterates its original arguments. See Rahman v.
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Fischer, No. 10-CV-1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014) (“If no objections
are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an
argument made to the magistrate judge, a district court need review that aspect of a reportrecommendation only for clear error.” (citations omitted)); Time Square Foods Imports LLC v.
Philbin, No. 12-CV-9101, 2014 WL 521242, at *2 (S.D.N.Y. Feb. 10, 2014) (clearly erroneous
standard applies when party reiterates arguments made to the magistrate judge); see also
DePrima v. City of N.Y. Dep’t of Educ., No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y.
Mar. 20, 2014) (collecting cases).
ii.
Motion to vacate Attachment Order
New York State Law governs this Court’s authority over provisional remedies, including
attachment. See Fed. R. Civ. P. 64(a)–(b). Where a plaintiff obtains an order of attachment, “the
defendant, the garnishee or any person having an interest in the property or debt may move . . .
for an order vacating or modifying the order of attachment.” N.Y. C.P.L.R. § 6223 (2012).
“Upon a motion to vacate . . . the plaintiff shall have the burden of establishing the grounds for
the attachment, the need for continuing the levy and the probability that he will succeed on the
merits.” Id. § 6223(b); see Maisano v. Beckoff et al., 705 N.Y.S.2d 251, 252 (App. Div. 2000)
(holding grant of vacatur appropriate because plaintiff failed to establish movant had an
attachable interest in subject property); Rothman v. Rogers, 633 N.Y.S.2d 361, 361 (App. Div.
1995) (holding grant of vacatur appropriate because plaintiff failed to establish grounds for
attachment). “The court has broad discretion in considering such an application.” Rothman, 633
N.Y.S.2d at 361 (citing Zenith Bathing Pavilion v. Fair Oaks S.S. Corp., 148 N.E. 532, 534
(1925)).
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b.
Unopposed Recommendations
Defendants did not object to Judge Pohorelsky’s R&R and Plaintiff only objected to the
recommendation that the Court vacate the Attachment Order. The Court has reviewed the
unopposed portions of the R&R, and, finding no clear error, pursuant to 28 U.S.C. § 626(b)(1),
the Court adopts Judge Pohorelsky’s recommendation that Rockaway’s motion for sanctions
pursuant to Rule 11 of the Federal Rules of Civil Procedure be denied.
c.
Plaintiff’s Objections
Plaintiff objects to Judge Pohorelsky’s recommendation that the Court grant Rockaway’s
motion to vacate the Attachment Order, arguing that Judge Pohorelsky made three errors: (1)
failing to find that Aceco has a “legal and equitable” interest in the Property; (2) making findings
of disputed facts in favor of Rockaway; and (3) concluding that Rockaway’s inability to sell the
Property is an irremediable hardship. For the reasons discussed below, the Court adopts Judge
Pohorelsky’s recommendations and grants Rockaway’s motion to vacate the Attachment Order.
i.
Defendants’ attachable interest
Plaintiff argues that Judge Pohorelsky failed to consider that Aceco had a “legal as well
as equitable interest in the . . . Property.” (Pl. Obj. 12, Docket Entry 58.) In the R&R, Judge
Pohorelsky acknowledged Plaintiff’s arguments that Aceco, Liu and Yu each had an interest in
the Property, but concluded that “[u]ltimately, the court need not determine whether the
defendants remain partners in Rockaway, for even if the individual defendants retain partnership
interests in Rockaway the court is satisfied that the order of attachment as it applies to [the
Property] should be vacated.” (R&R 6.)
Plaintiff’s objection to this determination reiterates its opposition to the motion before
Judge Pohorelsky, (see Pl. Obj. 12-13 (citing Pl. Opp’n Mem.)), and thus this Court will review
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Judge Pohorelsky’s recommendation for clear error. See Rahman, 2014 WL 688980, at *1.
Having considered Judge Pohorelsky’s conclusions and the accompanying objections, the Court
concludes that Plaintiff has not shown any error.
Plaintiff argues that as a guarantor for Rockaway’s mortgage on the Property, Aceco had
an attachable interest in the Property. (Pl. Obj. 12, Docket Entry 58.) Plaintiff alleges that
Aceco may have an equitable claim against Rockaway if Rockaway “had not promised to pay
Aceco Defendants any consideration in exchange for [the] guarantee.” (Pl. Opp’n Mem. 11–12;
Pl. Obj. 13 (“Aceco’s legal interest in the Property will be the amount of money it has paid on
the mortgage for the benefit of [Rockaway] as well as the consideration [Rockaway] should have
paid Aceco for the fair value of Aceco’s guarantee.”).) In considering this argument Judge
Pohorelsky concluded that “there is a serious question about whether any of the [D]efendants
have any interest in [the Property] such that it would properly be a subject of the attachment
order issued by the court.” (R&R 5.)
The Court agrees that Plaintiff has not shown that the mortgage guarantee agreement
results in any attachable debt or property interest that would be satisfied through attachment of
the Property. Under New York law, “[a]ny debt or property against which a money judgment
may be enforced as provided in [New York Civil Practice Law and Rules] section 5201 is subject
to attachment.” N.Y. C.P.L.R. § 6202. “A money judgment may be enforced against any debt,
which is past due or which is yet to become due, certainly or upon demand of the
[defendant] . . . .” N.Y. C.P.L.R. § 5201(a). New York law makes it clear that “[a] debt may
consist of a cause of action which could be assigned or transferred accruing within or without the
state.” Id. Moreover, “[a] money judgment may be enforced against any property which could
be assigned or transferred, whether it consists of a present or future right or interest and whether
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or not it is vested, unless it is exempt from application to the satisfaction of the judgment.” Id.
§ 5201(b). In short, the statute permits a plaintiff to attach any debt or property that a defendant
(1) has a current or definite future interest in, and (2) can assign. It is Plaintiff’s burden to
establish these grounds for attachment. N.Y.C.P.L.R. § 6223(b).
Plaintiff’s allegations, presenting a hypothetical scenario in which Aceco could take an
interest in Rockaway’s property, are insufficient to permit the Court to conclude that the
Property is properly subject to attachment. See N.Y.C.P.L.R. § 6223(b); see also Maisano v.
Beckoff et al., 705 N.Y.S.2d 251, 252 (App. Div. 2000) (holding grant of vacatur appropriate
because plaintiff failed to establish defendant had an attachable interest in nonparty-movant’s
brokerage account).
ii.
Disputed facts
Plaintiff objects to several “findings of fact” he has inferred from Judge Pohorelsky’s
R&R, including: “(i) There was a bona fide offer to purchase the Property; (ii) The purchaser is a
party unrelated, directly or indirectly, to any of the defendants or partners of Rockaway; (iii) The
sales [sic] price is a fair market price; (iv) The ‘recent appraisal’ . . . fairly represents the current
market value of the Property and is reliable; (v) The contemplated sale by [Rockaway] of the
Property is an ‘opportunity’ to [Rockaway]; (vi) [Rockaway] has no other alternative but to
either sell the Property or be forced to keep the Property.”5 (Pl. Obj. 14–15.) Plaintiff submits
that Rockaway failed to prove any of these facts. (Pl. Obj. 15.)
5
Plaintiff’s objections are directed at Judge Pohorelsky’s statements that “the offer [to
purchase the Property] appears to be a fair price consistent with market values in the area as
established by a recent appraisal. Unless the attachment is vacated, Rockaway will be unable to
sell the [P]roperty and the opportunity will be lost to the detriment of all. This is a hardship that
Rockaway, and in particular the non-defendant partners in Rockaway, should not be required to
bear.” (R&R 6–7.) These statements were not the basis for Judge Pohorelsky’s conclusion and
recommendation, and the Court does not rely on these findings.
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Plaintiff bears the burden to show that the Court should continue the Attachment Order.
N.Y.C.P.L.R. § 6223(b) (“Upon a motion to vacate or modify an order of attachment the plaintiff
shall have the burden of establishing the grounds for attachment, the need for continuing the levy
and the probability that he will succeed on the merits.”). The Court has “broad discretion . . . to
vacate an attachment order ‘when evidence, though not lacking altogether, may seem too weak
or uncertain to justify the remedy.’” Trigo Hnos., Inc. v. Premium Wholesale Groceries, Inc.,
424 F. Supp. 1118, 1123 (S.D.N.Y. 1976) (“Trigo Hnos. I”) (quoting AMF Inc. v. Algo Distribs.
Co. 369 N.Y.S.2d 460, 468 (App. Div. 1975) (citing Zenith Bathing Pavilion, 148 N.E. at 534)).
The grounds for attachment are enumerated by statute. New York Law provides in
pertinent part that:
An order of attachment may be granted in any action, except a
matrimonial action, where the plaintiff has demanded and would
be entitled, in whole or in part, or in the alternative, to a money
judgment against one or more defendants, when: . . . 3. the
defendant, with intent to defraud his creditors or frustrate the
enforcement of a judgment that might be rendered in plaintiff's
favor, has assigned, disposed of, encumbered or secreted property,
or removed it from the state or is about to do any of these
acts . . . .”
N.Y. C.P.L.R. § 6201. However, “‘[b]ecause attachment is a harsh remedy,’ these statutory
factors ‘must be strictly construed in favor of those against whom’ attachment is sought.” DLJ
Mortgage Capital, Inc. v. Kontogiannis, 594 F. Supp. 2d 308, 319 (E.D.N.Y. 2009) (quoting
Monteleone v. Leverage Grp., No. 08-CV-1986, 2008 WL 4541124, at *6 (E.D.N.Y. Oct. 7,
2008)) (citing Brastex Corp. v. Allen Int’l, Inc., 702 F.2d 326, 332 (2d Cir. 1983); Kornblum v.
Kornblum, 828 N.Y.S.2d 404 (App. Div. 2006)). In order to sustain an action based on Section
6201(3), the plaintiff must “present more than ‘a scintilla of proof as to the requisite elements of
the fraud cause of action alleged in the complaint.” Trigo Hnos., Inc. v. Premium Wholesale
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Groceries, Inc., 424 F. Supp. 1125, 1132 (S.D.N.Y. 1976) (“Trigo Hnos. II”) (quoting
MacMillan v. Hafner, 334 N.Y.S.2d 729, 729 (App. Div. 1973)); see DLJ Mortgage Capital, 594
F. Supp. 2d at 319 (“Because fraud is not lightly inferred, plaintiff’s moving papers must contain
evidentiary facts as opposed to conclusions proving the fraud.” (citations and internal quotations
omitted)). “It must appear that such fraudulent intent really exists in the defendant’s mind.” Id.
(citations and internal quotations omitted); Ames v. Clifford, 863 F. Supp. 175, 179 (S.D.N.Y.
1994) (“[T]he mere transfer of assets, without some showing of fraudulent intent, will not justify
attachment.” (quoting Computer Strategies, Inc. v. Commodore Bus. Machs., Inc., 483 N.Y.S.2d
716, 721 (App. Div. 1984))); Trigo Hnos. I, 424 F. Supp. at 1123 (“[P]referential payment to
certain creditors, unless part of a large scheme undertaken with actual intent to defraud creditors,
will not suffice to support an attachment.” (citations omitted)).
As Judge Pohorelsky found, Plaintiff “has no proof[] that the defendants have diverted
funds from Aceco to Rockaway’s benefit.” (R&R 6.) Plaintiff failed to present more than mere
suspicion that Defendants used Rockaway to dispose of or coneal property with the intent to
defraud Plaintiff or to frustrate the enforcement of a judgment in this action. See Trigo Hnos. I,
424 F. Supp. at 1123. Though “‘fraudulent intent is rarely susceptible to direct proof,’” the
Plaintiff must at least point to evidence showing “badges of fraud that give rise to a sufficient
inference of intent.” DLJ Mortgage Capital, 594 F. Supp. 2d at 320 (quoting in re Kaiser, 722
F.2d 1574, 1582 (2d Cir. 1983)). As Judge Pohorelsky succinctly stated in the R&R, “[i]n the
absence of any showing of collusion or bad faith in connection with the proposed sale of [the
Property], and none has been shown, the attachment that has been imposed on that property
11
should be vacated.”6 (R&R 7.) The Court agrees with Judge Pohorelsky that Plaintiff’s
allegations are insufficient to sustain the attachment against the Property.
iii. Exercise of discretion in light of hardship
Plaintiff argues that “the interference with [Liu and Yu’s] ‘indirect interest’ and the
interest of the non-party partners of [Rockaway] by reason of the attachment is not, standing
alone, extraordinary circumstances warranting vacatur of the attachment . . . .” (Pl. Obj. 19.)
“It is well recognized that the court has discretion to deny an order of attachment, even
where the plaintiff may have shown the statutory requirements for the provisional remedy.”
Trigo Hnos. II, 424 F. Supp at 1133. “The granting of a warrant of attachment is discretionary
and not a matter of right.” Id. (quoting Elliott v. Great Atl. & Pac. Tea Co., 171 N.Y.S.2d 217,
219 (1957), aff’d, 179 N.Y.S.2d 127 (1958) (citing Haebler v. Bernharth, 115 N.Y. 459, 462–63
(1889))). “Where the attachment is likely to be oppressive, . . . and may work irremediable
hardship, discretion of the court is called in aid of the oppressed.” Meridien Int'l Bank Ltd. v.
Gov't of Republic of Liberia, No. 92-CV-7039, 1996 WL 22338, at *4 (S.D.N.Y. Jan. 22, 1996)
(quoting Trigo Hnos. II, 424 F. Supp. at 1133).
It is undisputed that both Rockaway and at least two of Rockaway’s partners are not
parties to this action and Plaintiff has not alleged that they are liable to Plaintiff for its breach of
contract or account stated claims. The burden of the enforcement of the Attachment Order falls
directly on these third parties, who are seeking to sell the Property. Even if all of the statutory
requirements for the provisional remedy had been met in this case, it is within the Court’s
discretion to vacate the Attachment Order if it is “oppressive.” See Trigo Hnos. II, 424 F. Supp.
at 1133 (finding substantial hardship when $7,000 frozen in defendant’s bank account, leading to
6
Plaintiff does not specifically contest this finding in its objection.
12
a number of checks being returned for insufficiency of funds).
In light of the fact that Plaintiff has not met its burden to show that the Property can
properly be the subject of the Attachment Order under the statute, coupled with the fact that the
Attachment Order is creating a hardship on non-parties to this action by preventing them from
selling the Property, the Court finds that the circumstances warrant the exercise of discretion in
favor of vacatur.
III. Conclusion
Having considered Judge Pohorelsky’s Report & Recommendation and Plaintiff’s
objections, the Court adopts the Report & Recommendation in its entirety. The Court grants
Rockaway’s motion to vacate the Attachment Order entered against 25 Gracewood Drive,
Manhasset, New York and denies Rockaway’s motion for Rule 11 sanctions.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: October 20, 2014
Brooklyn, New York
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