Published on:

CPLR 1311….cont

That branch of the defendants’ motion which seeks to lift the statutory stay that has been in place is denied as moot. The court, in a so-ordered stipulation, lifted the stay pursuant to CPLR 1311.

That branch of the defendants’ motion which seeks to recover business property that was seized or produced voluntarily or pursuant to a subpoena is denied. It is noted that the parties have yet to conduct discovery in this forfeiture action, and that the enumerated business property was seized or produced in connection with the criminal action.

Thus, in order to recover this property, the non-criminal defendants are required to commence a replevin action pursuant to CPLR Article 71.

That branch of the defendants’ motion which seeks to vacate the Confession of Judgment on the ground that it was signed under duress is denied. Repudiation of an agreement on the ground that it was procured under duress requires the showing of a wrongful threat and the preclusion of the exercise of free will. Furthermore, an agreement purportedly procured under duress must be promptly repudiated. Here, the defendants were represented by counsel at the time they entered into the Stipulated Preliminary Injunction and Judgment of Confession. They now claim that their former counsel wrongfully advised them to enter into the Judgment of Confession, that they were advised by their former counsel that the restraints on their property would only last a few months, and that they were then “under threat” of criminal prosecution. Defendants’ assertion that the restraints would be in effect for no more than a few months is based on double hearsay.

That branch of the defendants’ motion which seeks to vacate the Confession of Judgment, and the notices of pendency filed against real properties in this state and in Florida, is denied, as defendant’s claims of financial hardship are not supported by any documentary evidence. Defendants’ claim that permitting plaintiff to restrain these assets would be unjust and inequitable, as the value of the properties far exceed the $4,795,764.00 set forth in the Confession of Judgment, is also rejected. Defendant has not submitted any evidence of the 2005 and present appraised value of the properties in question. Therefore, his claims regarding the value of these properties, are purely speculative.

In view of the foregoing, that branch of the defendants’ motion which seeks to lift the statutory stay is denied as moot, and the remainder of the defendants’ motion is denied.

Contact Information