REPORT & RECOMMENDATION
KATHARINE H. PARKER, Magistrate Judge.
TO: THE HONORABLE ALISON J. NATHAN, UNITED STATES DISTRICT JUDGE FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Currently before the Court is Triadou SPV S.A.'s ("Triadou") letter (doc. 634), which this Court interprets as a request for the Court to clarify or issue an advisory opinion that the Court's Memorandum and Order of Attachment of Triadou's assets in New York ("the Attachment Order," docs. 175 (6-24-16) and 192 (7-18-16)) do not cover real property owned by Syracuse Center LLC (the "Syracuse Property"). In addition, the City of Almaty, Kazakhstan and BTA Bank (the "Kazakh Entities") filed a response to Triadou's letter (doc. 647) requesting that the Court confirm the Syracuse Property is covered by the Attachment Order and enjoin Triadou's subsidiary from executing a mortgage and encumbering the Syracuse property without the Kazakh Entities' consent. As discussed below, this Court recommends that the Court deny both requests.
BACKGROUND
A. The Attachment Order
On June 24, 2016, the Court issued the Attachment Order for attachment of Triadou's assets in New York and allowed Triadou to submit objections to the proposed Order of Attachment. (Attachment Order 6-24-16 at 23-24.) Specifically, the Court found that the Kazakh Entities demonstrated sufficient grounds for attachment under CPLR §§ 6201 because (i) Triadou admitted that it intends to transfer funds to Switzerland, which demonstrates that the Kazakh Entities will have difficulty enforcing a future judgment (id. at 20); (ii) Triadou's previous assignment of an interest was undertaken with fraudulent intent because it was motivated by threats of litigation (id. at 21); and (iii) the Kazakh Entities demonstrated a probability of success on the merits on the unjust enrichment claim. (id. at 22-23.)
Triadou objected to the scope of the proposed Order of Attachment insofar as it covered unidentified property or debts of Triadou. (Doc. 182.) On July 18, 2016, the Court largely rejected Triadou's objections and issued an Attachment Order attaching (i) "any funds held in escrow by the Honorable Herman Cahn, pursuant to the Monitorship Agreement dated May 4, 2016 between and among CF 135 Flat LLC, CF 135 West Member LLC, the Chetrit Group LLC, and Triadou, or which may accumulate in such escrow pursuant to the Monitorship Agreement in the future," and (ii) "any other property in the State of New York, whether real or personal, tangible or intangible, presently existing or hereafter arising, which could be assigned or transferred as provided by CPLR ¶ 5021, in which Triadou has an interest, to the extent such interest, and upon any debts in which Triadou claims a right, as will satisfy at least the sum of [the Kazakh Entities'] minimum recovery in this action, $69,275,810.00." (Doc. 192 at 7.)
B. The Syracuse Property
In July 2013, Triadou obtained a $1.9 million loan from Adlux Sarl ("Adlux"), the terms of which were set forth in an agreement dated December 13, 2013. (Doc. 634 at 1.) Triadou obtained the loan for the purpose of acquiring the Syracuse Property, the proceeds of which were provided to Syracuse Center LLC ("Syracuse Center"). (Id.) One of Triadou's subsidiaries, Argon Holding, Corporation ("Argon"), is the sole member of Syracuse Center, thereby Triadou has an indirect interest in Syracuse Center. (Id.) Syracuse Center ultimately purchased the Syracuse Property.
[REDACTED/]1 [REDACTED/]. [REDACTED/]
[REDACTED/] On April 26, 2018, Syracuse Center received two letters indicating that the City of Syracuse intended to repossess the Syracuse Property on June 11, 2018, unless all outstanding taxes, along with penalties and interest, are paid. (Id., Exs. 11 and 12.)
In a May 15, 2018 telephonic conference concerning the parties' applications on this matter, Triadou informed this Court that Syracuse Center [REDACTED/] During the conference, the Kazakh Enities objected to Triadou's request and confirmed [REDACTED/]
DISCUSSION
A. Triadou's Request For Clarification That The Attachment Order Does Not Apply To The Syracuse Property
In its letter, Triadou states that the Syracuse Property is not subject to the Attachment Order because Triadou's interest in the Syracuse Property has been [REDACTED/] It is incorrect to broadly state that the Syracuse Property is not subject to the Attachment Order. However, [REDACTED/] [REDACTED/] The Attachment Order does not restrict nonparties' rights in assets in which Triadou also has an interest. Instead, the Attachment Order only extends to the Syracuse Property "to the extent" of Triadou's interest. (Doc. 692 at 7.) "It is beyond cavil that attachment will only lie against the property of the debtor, and that the right to attach the property is only the same as the defendant's own interest in it." Bank of New York v. Nickel, 14. A.D.3d 140, 145 (1st Dep't 2004) (internal citation and quotation marks omitted); 12 Carmody-Wait 2d, N.Y. Prac. § 76:121. In fact, the Court expressed this exact principle in the Attachment Order. (Doc. 192 at 4.) To hold otherwise would force Triadou and Syracuse Center [REDACTED/] Accordingly, there is no need for clarification of the Attachment Order and this Court recommends that Triadou's request be denied.
Moreover, Triadou's request that the Court analyze its submitted evidence and make factual findings in the absence of a dispute over a particular set of factual circumstances, is, in essence, a request that the Court issue an advisory opinion.2 See Mears v. Montgomery, No. 02-CV-407 (MHD), 2013 WL 69221, *2 (S.D.N.Y. Jan. 4, 2013) (declining to clarify a prior decision of the Court issuing an injunction where the party seeking the clarification set forth no explanation of the factual context in which the injunction order would be breached because doing so would be tantamount to rendering an advisory opinion). To the extent that there are facts giving rise to a claim that Triadou breached the Attachment Order, the Kazakh Entities can make a motion upon such breach.
B. The Kazakh Entities' Request For An Injunction
To the extent the Kazakh Entities are seeking a preliminary injunction to prevent [REDACTED/] the Kazakh Entities fail to establish the elements necessary for injunctive relief. In the Second Circuit, a party may demonstrate that it is entitled to a preliminary injunction in one of two ways. First, he may "show that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest." Am Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015). Second, "he may show irreparable harm and either a likelihood of success on the merits or `sufficient serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.'" Id. (quoting Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215 (2d Cir. 2012). Under either standard, the Kazakh Entities are required to show irreparable harm.
The Kazakh Entities fail to establish irreparable harm. "The showing of irreparable harm is `[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction'." Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Where there is an adequate remedy at law, such as an award of monetary damages, a party cannot establish irreparable harm. See Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (citing Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)). Here, the Kazakh Entities concede that Triadou may encumber the Syracuse Property "so long as the resulting funds are kept in escrow pending the resolution of this lawsuit," thus, admitting that monetary damages would be an adequate remedy. (Doc. 647 at 3.) The Kazakh Entities also admit that they are willing to work with Triadou "to execute a transparent sale, so long as the resulting funds are held by a neutral monitor or with the Court. . . ." (id.) Accordingly, this Court recommends that the Kazakh Entities' request for injunctive relief be denied.
CONCLUSION
For the foregoing reasons, this Court respectfully recommends that the Court deny Triadou's request for clarification that the Attachment Order does not apply to the Syracuse Property and deny the Kazakh Entities' request for an injunction.
