KURIANSKY v. BED-STUY HEALTH CARE CORPORATION, 73 N.Y.2d 875 (1988)

535 N.E.2d 286, 538 N.Y.S.2d 233

EDWARD J. KURIANSKY, as Deputy Attorney-General for Medicaid Fraud Control, et al., Respondents, v. BED-STUY HEALTH CARE CORPORATION et al., Appellants, et al., Defendants.

Court of Appeals of the State of New York.Argued October 11, 1988
Decided November 22, 1988

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Frank Vaccaro, J.

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Joel J. Spector for appellants.

Edward J. Kuriansky, Deputy Attorney-General (Arthur A. Munisteri and Elizabeth T. Bogren of counsel), respondent pro se, and for State of New York, respondent.

Lawrence Goldman, Anthony R. Cueto, Jack T. Litman an Edward M. Chikofsky for New York State Association of Criminal Defense Lawyers and another, amici curiae.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Plaintiffs made a sufficient showing to satisfy both CPLR 1312, which governs provisional remedies in CPLR article 13-A civil forfeiture actions, and CPLR 6201 and 6301, which provide for attachments and preliminary injunctions in other types of civil actions. Accordingly, the Supreme Court did not abuse its discretion by granting plaintiffs’ motions for provisional relief under CPLR articles 13-A, 62 and 63.

Defendants’ present claim — that conditioning relief from the provisional restraints upon defendants’ disclosure of potentially incriminating financial information was precluded by the Fifth and Sixth Amendments, and deprived defendants of funds necessary to pay counsel — was not preserved for our review. Although defendants broadly argued, in response to plaintiffs’ motion for further discovery, that “CPLR Article 13-A violates defendants’ Fifth Amendment rights,” the record does not demonstrate either that defendants ever actually attempted to invoke their Fifth Amendment privilege or that they made the argument they now advance on appeal. Accordingly, we have no occasion to pass upon that argument.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER,

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TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.

Order affirmed, etc.