Moreover, plaintiff has not argued that defendant bears the burden on the question of security, and whether the burden is appropriately on the defendant is not as clear in this jurisdiction as the Kend court considered it to be in another. For example, in Walker, the court discussed and dismissed the notion that the defendant bore the burden of showing that “the attachment is not necessary for security when plaintiff was not granted the attachment on that ground,” noting that such a burden would “raise serious questions as [to] the constitutionality of C.P.L.R. § 6223 as applied.” 424 F.Supp. at 97. Cf. Sugar v. Curtis Circulation Co., 383 F.Supp. 643 (S.D.N.Y.1974) (three-judge court), vacated and remanded sub nom. Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) (<HOLDING>). See also AMF, Inc. v. Algo Distributors, 48
holding that if the trial court would have had no discretion to deny summary judgment on an alternative ground the appellate court can on that alternative ground sustain the order granting summary judgment holding that defendant waived ineffective assistance claim based on trial counsels failure to emphasize certain evidence where amended motion for new trial did not assert claim of ineffectiveness on that ground and no argument related to the asserted ground was made at the motion for new trial hearing holding that new yorks attachment procedure was unconstitutional vacated on the ground that the federal court should have abstained holding that since district court of appeal properly found that the trial court lacked jurisdiction to rule on a 3850 motion during the pendency of a direct appeal the district court of appeal should have vacated the order rather than affirming on the merits holding an issue not preserved when one ground is raised to the trial court and another ground is raised on appeal