Skyline Vineyards, Inc. v. Moravec

— Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court, Yates County, for further proceedings in accordance with the following memorandum: The court erred in its determination that a forklift truck and clamp attachment levied upon by the Sheriff could be sold to satisfy respondent’s judgment against Villa D’lngianni Winery. The evidence before the court in this proceeding commenced pursuant to CPLR 5239 demonstrated that petitioner was the owner of the forklift truck and respondent’s conclusory allegations failed to raise a question of fact on this issue. Therefore, petitioner’s application seeking possession of the forklift truck is granted.

In our view, however, the proof submitted by the parties did not support a summary disposition as to ownership of the clamp attachment. Petitioner alleged that the truck and the clamp were considered to be one unit, but respondent submitted proof that the clamp had been purchased separately by Villa D’lngianni Winery several years before the forklift truck was first leased. Therefore, the matter is remitted to Supreme Court for a separate trial to determine ownership of the clamp attachment. (Appeal from order of Supreme Court, Yates County, Dugan, J. — levy property.) Present — Dillon, P. J., Doerr, Boomer, Pine and Lawton, Order