Beef & Bison Breeders, Inc. v. Capitol Refrigeration Co. Inc.

431 N.Y.S.2d 986 (1980)

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Nature of the Case

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Facts

There are two motions involving the same parties. Beef petitioned for an order vacating the execution issued by Capitol and voiding any levy made pursuant to said execution, on the ground that Beef has a permanent interest in the property which is the subject of the levy pursuant to CPLR 5239, and for an order determining the rights of Beef and Capital regarding the property of the debtor Kwik Serv Meats, Inc. (Kwik Serv). On February 8, 1980 Beef entered into a security agreement with Kwik Serv whereby, as security for repayment of a certain promissory note of the same date, Kwik Serv granted Beef a security interest in all of the personal property, furniture, fixtures, equipment and vehicles then owned or thereafter acquired by Kwik Serv. On February 20, 1980 Beef filed the financing statement signed by Kwik Serv in the Secretary of State's office but did not file the same in the Albany County Clerk's office. Kwik Serv, defaulted on the promissory note and Beef commenced an action against said them. On April 4, 1980 Capitol entered a judgment in the Albany County Clerk's office against Kwik Serv in the sum of $ 701.78. On April 16, 1980 a property execution was delivered to the Albany County Sheriff for service on the judgment debtor and on August 15, 1980, the Albany County Sheriff levied upon the assets of Kwik Serv at 700 New Loudon Road in Latham, New York and scheduled a Sheriff's sale for August 25, 1980 which has been temporarily stayed. Patrick Cornell is the owner of premises formerly occupied by Kwik Serv. All the personal property, chattels and equipment owned by Kwik Serv still remain on the premises owned by Cornell who has advised Beef and Capitol that they would be charged $ 40 per day for storage of the property from July 28, 1980. Beef claims that it is the holder of a perfected security interest in the property and is entitled to priority over the lien creditors Capitol and Cornell.