General Electric Credit Corporation v. Marcellas Appliances Sales & Services

Cross appeals from an order of the Supreme Court at Special Term, entered May 2, 1977 in Albany County, which granted plaintiff an order of seizure. Pursuant to the terms of an inventory financing agreement executed by the parties on November 27, 1969, plaintiff extended financing services to defendant for the operation of its retail appliance business. Among other things, this agreement provided for periodic inspections of defendants place of business to verify that defendants monthly remittance accurately reflected its total sales out of inventory subject to the agreement. At the time of a regular inspection on July 14, 1976, there appeared a collateral deficiency of approximately $34,000. On August 16, 1976 it had risen to about $55,000, and on August 23, 1976 it was $97,949.09. In other words, defendant had sold almost $100,000 worth of inventory subject to plaintiffs security instrument without payment to plaintiff according to its terms. After some procedural difficulties which resulted in dismissal of its original complaint, plaintiff was granted leave to replead in its action to recover chattels, issue being joined December 30, 1976. Upon plaintiffs subsequent application, an order of seizure was granted on April 29, 1977 (CPLR 7102) and this appeal ensued. It is defendants contention that Special Term improperly granted the order of seizure after service of the amended complaint. The particularized objections are essentially procedural in nature and do not address the merits of the controversy. We perceive no useful purpose in setting them forth herein, for the record clearly reveals a breach of the terms and conditions of the [66 A.D.2d 927 Page 928]