Martin v. Rice

—In an action, inter alia, for a judgment declaring the rights of the parties to a certain thoroughbred horse named "Mikey”, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), dated August 12, 1993, which, after a hearing, denied the plaintiffs motion for the provisional seizure of the horse pursuant to CPLR article 71 and for a preliminary injunction enjoining the transfer of the horse.

Ordered that the order is affirmed, with costs.

The record supports the Supreme Court’s determination that the plaintiff failed to meet her burden of proof with respect to the provisional seizure of the horse pursuant to CPLR 7101 and 7102 and a preliminary injunction enjoining the transfer of the horse (see, East Side Car Wash v K.R.K. Capitol, 102 AD2d 157, 161; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862).

The plaintiff’s argument concerning a bailment for the mutual benefit of the parties is raised for the first time on appeal and is, therefore, unpreserved for appellate review (see, Synder v Newcomb Oil Co., 194 AD2d 53, 61). Mangano, P. J., Balletta, Copertino and Hart, JJ., concur.