## Facts

- Morning Glory Media, Inc. acquired a Compugraphic typesetting machine financed by a bank loan supported by defendants’ loan guarantees and pledged collateral.
- The parties’ arrangement gave defendants an ownership or security-related interest in the machine while Morning Glory operated it; later, the board adopted a resolution modifying the ownership/cost-sharing arrangement.
- A dispute arose over control of the machine and where it should be located.
- Morning Glory filed a CPLR article 71 replevin action and obtained an ex parte order of seizure without notice under CPLR 7102.
- The sheriff seized the machine and moved it to an apartment occupied by Morning Glory’s president, leaving it under seal.
- Morning Glory moved to confirm the seizure order; defendants opposed, asserting due process objections to seizure without notice and contract-based defenses disputing Morning Glory’s superior right to possession.

## Issues

1. Whether revised CPLR article 71 procedures authorizing ex parte seizure of chattels, with post-seizure review, satisfy federal due process.
2. Whether the plaintiff met CPLR 7102’s requirements for confirmation, including a superior right to possession, probability of success on the merits, and necessity for immediate seizure.

## Decision

- The court held revised CPLR article 71 is constitutional because it requires judicial review based on sworn factual showings and provides prompt post-seizure procedures to contest the seizure and obtain return of property.
- The court denied the motion to confirm the seizure order because plaintiff failed to establish a superior possessory right or a sufficient probability of success on the merits.
- The court directed the machine be returned to its prior location pending resolution of the parties’ underlying contractual and ownership disputes.

## Legal Principles

- Ex parte prejudgment seizure is permissible under due process when a statute requires judicial authorization based on detailed affidavits, limits seizure to specified grounds, and provides a prompt post-seizure opportunity to challenge the deprivation.
- Under CPLR article 71, confirmation requires proof of a superior right to possession and a probability of success on the merits, plus a fact-specific showing that immediate seizure is necessary to prevent concealment, removal, damage, or other frustration of the court’s judgment.
- Substantial factual disputes and contract-based defenses bearing on ownership and right to possession can defeat confirmation and require restoration of the status quo.

## Conclusion

The court sustained the constitutionality of New York’s revised replevin seizure procedure but refused to continue an ex parte seizure where the plaintiff’s showing did not outweigh defendants’ competing possessory claims and substantial defenses.


Morning Glory Media, Inc. v. Enright, 100 Misc. 2d 872, 420 N.Y.S.2d 176 (Sup. Ct. Monroe Cnty. 1979)