82 Misc. 2d 835 | N.Y. Sup. Ct. | 1975
This is a motion by plaintiff wife, seeking an order of civil arrest of defendant, her husband, pursuant to CPLR 6101.
The action underlying this motion alleges a conversion by the defendant of her personal property consisting of jewelry,
Defendant, in response to the statements made in plaintiff’s affidavit, while admitting that he has possession of the jewelry, the value of which he claims is exaggerated by her, denies that this is her personal jewelry. He states that it was all purchased by him out of his own funds; was not given to her as a gift, but was bought by him as an investment. He further denies that he intends to leave the jurisdiction; asserts that he has a substantial business in New York City and that the condominium in Israel, which belongs to both of them, has not yet been built. He states, additionally, that he has been a resident of the United States all of his life, and that he has every intention of remaining here, where his children and mother reside.
The text of CPLR 6101, entitled "Grounds for Arrest” reads as follows:
"An order of arrest as a provisional remedy may only be granted:
"1. where there is a cause of action to recover damages for the conversion of personal property, or for fraud or deceit, and the person to be arrested is not a woman; or
"2. where the plaintiff has demanded and would be entitled to a judgment or order requiring the performance of an act the neglect or refusal to perform which would be punishable by the court as a contempt and where the defendant is not a resident of the state or is about to depart therefrom, by reason of which non-residence or departure there is a danger that
In the instant case, the only grounds upon which the order of arrest can be bottomed is subdivision 1, dealing with a cause of action to recover damages for the conversion of personal property. Subdivision 2 is not available to plaintiff, since to obtain an order of arrest under the latter subdivision, "the plaintiff must demand the performance of an act by the defendant, which, if not performed, would subject the defendant to contempt proceedings * * * As a final requirement, arrest is available only if the defendant is a nonresident or is about to leave the State and the plaintiff can show that because of the defendant’s nonresidency or proposed departure from the State there is a danger that the judgment may be evaded.” (Weinstein-Korn-Miller, NY Civ Prac, par 6101.11.)
The granting of an order of arrest is within the discretion of the court (CPLR 6111).
The concept of civil arrest has met with considerable criticism over the years and can be traced back to the common-law practice of commencing an action by taking the defendant into custody. At one time, there were many conditions under which such a provisional remedy was permitted, but it is now authorized only under very limited circumstances. "Most commentators would agree * * * that civil arrest, at least to the extent it is based bn the nature of the plaintiffs action, is an 'anachronistic survival of imprisonment for debt and has no place in a modern jurisprudence.’ ” (Weinstein-Korn-Miller, NY Civ Prac, par 6101.02.)
Aside from the question of whether the court should exercise its favorable discretion under the circumstances herein, there is a more serious issue, and that concerns the constitutionality of subdivision 1 itself. By its terms, subdivision 1 contains an exemption for women. In commenting on this exemption, Weinstein-Korn-Miller states: "The exemption may represent a compromise within the Legislature or simply a certain squeamishness about incarcerating females in civil actions solely because of the nature of the lawsuit brought against them. Special treatment based on sex is difficult to justify; the presence of the exemption in CPLR 6101(1) emphasizes the inherent defect in the remedy as applied to either sex.” (Weinstein-Korn-Miller, NY Civ Prac, par 6101.12; emphasis supplied.)
Should the plaintiff, a woman, be entitled to an order of
Statutes which discriminate on the basis of sex alone have invariably been stricken by the courts as unconstitutional, unless the discrimination can be supported by some rationale. In Matter of Alessi v Nadjari (47 AD2d 189), the Appellate Division, First Department, dated March 27, 1975, in a Per Curiam decision in which it discussed and quoted from a recent decision of the United States Supreme Court (Taylor v Louisiana, 419 US 522), said (p 191-192):
"This blanket exemption of women, it must be noted, was heretofore held constitutionally permissible and was justified
"[W]e think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex”. (Emphasis supplied.)
It is the determination of this court that CPLR 6101 (subd [1]) is unconstitutional for the reasons set forth above.
However, even if the court were to have upheld the constitutionality of this section, it would, in any event, have denied this application in the exercise of discretion. A learned former Justice of this court, Hon. Bernard S. Meyer, in vacating an arrest order, made a cogent observation as to the circumstances under which an order of arrest should be granted, saying as follows: "Civil Rights Law, §23, provides that: 'A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute.’ Arrest in a civil action is a drastic remedy, penal in nature, and because of its severity, is not looked upon with favor, Soares, Inc. v Guertzenstein, 276 App Div 155, 93 NYS2d 222; Burns v Newman, 274 App Div 301, 83 NYS2d 285; Peterson v Kirby, 192 App Div 707, 183 NYS 89.” (City Factors Corp. v Glubo, 192 NYS2d 76; emphasis supplied.)
For the reasons heretofore set forth, the motion for an order of arrest is accordingly denied.