Provisional Remedies

Question 1

Attatchment [The Angry Sister]

CPLR Article 62

Answer 1

To aid post judgment enforcement of money judgment or in rem jx
- Plaintiff obtains an “order of attatchment” which is delivered to the sheriff
– Sheriff seizes defendant’s property either actually or constructively.
- Defendant’s property is seized, and defendant is prevented from using it during the pendency of a money action.
- Also, can be used as the commencement of an action based on quasi in rem jx.

Question 2

Preliminary Injunction / TRO – Strong Sister

Answer 2

CPLR Article 63
- Orders the defendant to maintain specified status quo during the pendency of the action

Question 3

Recievership – The Protective Sister

Answer 3

CPLR Article 64
- Reciever is appointed to take possession of and protect and preserve designated property owned by defendant preventing defendant from selling ot abusing the property during pendency of the action.

Question 4

Notice of Pendency – The Space Sister

Answer 4

CPLR Article 65 – The Lis Pendens
- A document filed in the County Clerk’s office putting the world on notice of plaintiff’s claim to the property. Anyone who relies on defendant’s ownership of the property to lend money with the property as collateral or to buy the property, does so at his peril and does so subject to the pending action.

Question 5

Seizure of Chattel – The Anxious Sister, The Unofficial Sister

Answer 5

Available in a Replevin Action ONLY
CPLR Article 71
- Property at issue is seized by sheriff and plaintiff may end up witth possession of the property before an adjudication on the merits.

Question 6

Common Characteristics of the Sisters of the Provisional Remedy

Answer 6

• Under special circumstances, you can obtain your ultimate relief before a final adjudication on the merits. That’s why it’s a provision remedu.
• The Court may require you to pick your sister. CPLR 6001
• Provisional remedies often are used by plaintiff against defendant. Also can be used by defendant against plaintiff or co-defendant on a counterclaim or cross claim.
• Provision remedites are strictly construed, unlike the rest of the CPLR.
• There can be personal liability for misuse or mistaken use of a provisional remedy.

Question 7

How to Get The Angry Sister: Attachment [Art. 62]

Answer 7

Plaintiff obtains an “order of attachment” which is delivered to the sheriff.
- Sheriff seizes defendant’s property, either actually or constructively
- In either event, defendant is deprived of the ability to sell or encumber the property, pending resolution of the merits of the action

Question 8

Why Attach? – Angry Sister: Attachment

Answer 8

This attachment is a kind of lien on the property – giving plaintiff first dibss on the property if plaintiff winds the case

Purposes of the Order of Attachment:
1. Security to satisfy a judgment; OR
2. Basis of quasi in rem jx. When used as basis for quasi in rem jc, the order of attachment must be levied before the service of the Summons + Complaint

Question 9

Levy

Answer 9

The moment the sheriff delivers the order of attachment to the person holding defendant’s property [garnishee] or to the defendant.

Question 10

When Can You Attach

Answer 10

• Must be an action where a money judgment is available. CPLR 6201
• Always at the discretion of the court, even if plaintiff meets the requirements.

Question 11

Attachment Available Only in Specific Circumstances

Answer 11

Seeking MONEY judgment AND
1. Defendant is non-domiciliary residing outside of NYS or a foreign corp not authorized to do business in NYS; OR
2. Def. is a NYS domicile or NYS resident and cannot be personally served despite diligent efforts to do so; OR
3. Def., with intent to defraud creditors or enforce a judgment, has assigned, disposed of, encumbered, secreted property, removed property from the state, or is about to do any of these acts; OR
4.** Action is brought by a crime victim** and** seeks to recover damages** sustained as a result of that crime; OR
5. Action is based on judgment, decree, or order of a Federal Court or another court entitled to full faith and credit in NYS

Question 12

Garnishee

Answer 12

Any person who owes a debt to the defendant or who has in his possession or custody, any property belonging to the defendant or in which the defendant has a property interest

Question 13

Order of Attachment

Answer 13

the order directing the attachment of defendant’s property

Question 14

Confirming the Attachment

Answer 14

Motion made within 5 days of attachment which allows defendant to challenfe the attachment, if the order of attachment was obstained by Order to Show Cause

Question 15

Undertaking

Answer 15

a bond which is required and ordered if the court grants the application for an order of attachment. The undertaking will be used to compensate the defendant if defendant wins or if the plaintiff should not have been granted the attachement is the first place. CPLR 6212(b)

Question 16

Surety

Answer 16

The entity [insurance co.] or individual that supplies the undertaking [bond]

Question 17

How do you Attach

Answer 17

1. Ask Court for an order of attachment
   - Make a motion
   - - Order to Show Cause [for that element of suprise]
   - - Notive of Motion

Question 18

On the Motion to Obtain the Order of Attachment [CPLR 6212]

Answer 18

Plaintiff must show:
1. Have a Cause of Action
2. One of the grounds under CPLR 6201 exists
3. It is “probable” that plaintiff will succeed on the merits. CPLR 6212(A)
4. The amount sough is greater than any counter claims

Court must include an undertaking, not less than $500.

Question 19

After the Order of Attachment has been issued

Answer 19

- Deliver the Order to the Sheriff in the county where the property to be attached is located
**- Levy: **Sheriff serves the Order of Attachment on garnishee or defendant
- - Real Property - file a notice of attachement with the County Clerk CPLR 6216
- - Personal Property -
- -1. Sherifd serves the Order of Attachment on the garnishee CPLR 6214. Garnishee must hold property
- - OR
- - 2. Sheriff Seizes the property. CPLR 6215
- - Plaintiff must indemnify the sheriff

• Confirm the Attachment: If the application for the Order of Attachemnt was by Order to Show Cause, must Move to Confirm the Order of Attachment within 5 days of the Levy of the Attachment
• Commence the Action: If the attachment is granted before the Action is Commenced –> the action must be commenced within 60 days of granting the Order of Attachment

Question 20

What Property May be Attached

Answer 20

• Any property which may be used to satisfy a judgment pursuant to CPLR 5201 [CPLR 6202]
• “Any property interest of the defendant that is assignable or transferable” May be tangible or intangible, so long as it can be transferred or assigned. [CPLR 5201]

Plaintiff steps into the shoes of the defendant:
- May not take more than defendant’s own interest in the property but may reach whatever interest defendant has in the property.
- i.e. Whole partnership is not attachable, but defendant’s interest in the partnership is attachable. Attach individual partner’s share of profits - makes the partnership the garnishee.

• May use all discovery devices to find attachable assets of defendant. CPLR 6220

Question 21

Make Careful Use of Attachement: Defendant’s Damages on Attachment

Answer 21

If defendant wins on the merits, he can collect damage for the attachment, to be paid by the undertaking [bond]
- Damages include losses, costs and attorneys’ fees. Damages are not limited to amount of the undertaking.

If defendant looses on the merits but can show that the attachment should not have been granted, [i.e. plaintiff alleged he was non-domiciliary, but defendant shows he was actually domiciled in NY], then defendant can recover damages on the attachment, paid out of the the undertaking.

Question 22

Chattel – Seizure: The Anxious Sister [Only available in Replevin Action]

CPLR Article 71

Answer 22

Replevin = An action to recover Chattel
Chattel = an item of property other than real estate

Kinds of Chattel:
- Chattel personal = a tangible good or intangible right -i.e. patent
- Chattel real = a real property interest less than a fee, auch as a leasehold estate.
- Chattel vegetable = a moveable article of vegetable origin, such as timber, corn or fruit
- Local chattel = personal property that is affixed to the land; fixture
- Unique chattel = absolutely irreplaceable because it is one of a kind

Order of Seizure = Order directing the Sheriff to Seize Chattel.

NB= Procedurally seizure includes many of the same elements of the attachment process

Question 23

Is a $100 Bill Chattel?

Answer 23

Chattel = moveable or transferable property; personal property; esp., a physical object capable of manual delivery and not real property

Money is NOT chattel: It has no intrinsic value - it represents value.

Question 24

How to Seize

Answer 24

Move for Order of Seizure CPLR 7102:
- By Notice of Motion OR
- By Order to Show Cause. If the application is by Order to Show Cause,
- - If by OSC, must move to Confirm the Order of Seizure within 5 days of the Seizure. CPLR 7102(d)(4)

Question 25

On the Motion For Seizure CPLR 7102(c)

Answer 25

- Party seeking Seizure has the burden of proof - Party seeking the Seizure must 1. Identify the chattel and indicate the value of the chattel, though it need not have any financial value 2. Show plaintiff is entitled to the chattel 3. Show likelihood of success on the merits 4. Show defendant is wrongfully withholding the chattel 5. State that demand for chattel was made and refused and that plaintiff knows of no defense to the claims 6. Plaintiff will be required to provide an undertaking in an amount determined by the court, which must be for at least twice the chattel's value [CPLR 7102(e)]

Question 26

After the Order of Seizure is Obtained

Answer 26

- The Order of Seizure, the papers on which the Order is based, and the undertaking are delivered to the sheriff; - The sheriff delivers the papers and seizes the chattel

Question 27

Judgment on the Replevin Action CPLR 7108

Answer 27

- Awards the chattel and fizes the value of the chattel as of the time of trial. - Judgement is delivered to the sheriff - Sheriff turns chattel over to the winner

Question 28

Preliminary Injunction + TRO: The Strong Sister ## Footnote CPLR Article 63

Answer 28

Preliminary Injunction maintains the status quo while the action is pending TRO maintains the status quo while the motion for the Preliminary Injunction is pending

Question 29

When is the Preliminary Injunction Available? ## Footnote CPLR 6301

Answer 29

1. What the defendant is doing relates to the subject matter of the underlying action, is a violation of plaintiff's rights and will negate the value of the ultimate judgment in the merits. - Does not require that a permanent injunction be sought but, an action only for money damages does not qualify for a preliminary injunction OR 2. Plaintiff is seeking a permanent injunction as the ultimate relief and the defendant's acts currently are causing injury. Plaintiff wants to stop the defendant permanently and needs the temporary stop to prevent injury to plaintiff.

Question 30

Elements on the Motion for a Preliminary Injunction

Answer 30

Show that: 1. The underlying action is for an identifiable item **other than money** or show that the underlying action is for a **permanent injunction**; 2. Judgment on the merits would be meaningless without the preliminary injunction 3. The likelihood of success on the merits of the underlying action 4. There will be irreparable injury if the preliminary injunction is not granted; - Mere apprehension is not enough. Must demonstrate the actual injury 5. There is no adequate remedy at law - If money damages would suffice - then you have an adequate remedy at law and do not get a preliminary injunction 6. By case law, show that the balance of the equities are in the movant's favor. I.E. Laches or unclean hands will result in denial.

Question 31

On the Motion for a Preliminary Injunction

Answer 31

- Must demonstrate that defendant is acting ot about to act - Undertaking required - Judge determines the amount. CPLR 6312(b)

Question 32

Does the preliminary injunction create res judicata [a matter judged] for the merits of a permanent injunction?

Answer 32

NO

Question 33

Are damages available to defendant if the Prelininary Injunction or TRO was improper?

Answer 33

YES CPLR 6315

Question 34

What is the standard of review for the granting of the motion?

Answer 34

Abuse of discretion [Seigel]

Question 35

Is an **undertaking mandatory** for a Preliminary Injunction

Answer 35

YES CPLR 6313[b]

Question 36

Is an undertaking mandatory for a TRO?

Answer 36

NO, it is discretionary. 6313[c]

Question 37

TRO ## Footnote CPLR 6301

Answer 37

- Often used to protect plaintiff before the motion for the preliminary injunction is decided. - Must show immediate and irreparable harm.

Question 38

Sanction for violating a TRO or Preliminary Injunction

Answer 38

Contempt

Question 39

Defendant's Remedies on the TRO + Preliminary Injunction

Answer 39

Defendant may move to vacate or modify the TRO or the Preliminary Injunction at any time. - The vacating or modification of the TRO/Preliminary Injunction may conditioned upon defendant supplying an undertaking to protect plaintiff. CPLR 6314 Damages are available if TRO or Preliminary Injunction was improper or defendant wins on the merits. CPLR 6315 Damages ordinarily limited to the amount of the undertaking. [Unlike attachment where there is no limit to damages.]

Question 40

Recievership: The Protective Sister ## Footnote CPLR Article 64

Answer 40

CPLR 6401- Reciever is temporarily appointed to preserve a designated property during litigation Available ONLY - In an action involving a specific and identifiable property as the Subject of the Action - to which plaintiff asserts some right to the property. Temporary receiver is not available in an action for money damage only. Most common action where temporary reciever is appointed: - Foreclosure action on an income producing property. Reciever will collect rents and manage the property during the foreclosure. Reciever has power to hold real or personal property, sue, collect and settle debts and claims

Question 41

Recievership: On the Motion

Answer 41

- Identify the property - Show that the property is in danger of damage, destruction, loss or removal from the state. CPLR 6401[a] - Appointment is within the discretion of the court - Undertaking is required with the appointment CPLR 6403 - Motion may be made before or after commencement of the underlying proceeding

Question 42

Notice -- Lis Pendens: The Spacey Sister ## Footnote CPLR Article 65

Answer 42

A notice filed with the county clerk where the real property is located. The notice includes: - the names of the parties to the action - the object of the underlying action, and - description of the property including block and lot number

Question 43

What does it do? - Lis Pendens: The Spacey Sister ## Footnote CPLR Article 65

Answer 43

Puts the world on notice that there is a "Cloud on the Title" and that someone other than the named owner may have rights to the property. Anyone who buys the property or gives a mortgage on the property or accepts the property as collateral on a loan, does so subject to the adjudication of the rights of the plaintiff who filed the Lis Pendens.

Question 44

Grounds -- Lis Pendens

Answer 44

There must be an underlying action involving a claim to: - Title - Possession - Use OR - Enjoyment of the real property i.e. mortgage foreclosure action, partition, specific performance, claim for easement on the property.

Question 45

On the motion -- Lis Pendens

Answer 45

There is NO motion - just file the notice! The Lis Pendens is a notice filed with the county clerk where the real property is located