Article 62 Attachment Flashcards
CPLR 6201
Select all correct answers.
An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled to a money judgment against one or more defendants, when:
(a) the defendant is a nondomiciliary residing without the State
(b) the defendant is a foreign corporation not qualified to do business in the State
(c) the defendant resides in the State and cannot be personally served despite diligent efforts to do so
(d) the cause of action is based on a judgment of any court which is entitled to full faith and credit in this State.
Answers: (a), (b), (c) and (d)
CPLR 6201 clearly indicates that choices (a), (b), (c) and (d) are all correct.
CPLR 6202
Property which may be attached includes:
(a) only cash
(b) only tangible personal property
(c) any debtor property against which a money judgment may be enforced
(d) anything, without limitation.
Answer: (c)
CPLR 6202 provides that any debtor property against which a money judgment may be enforced as provided in CPLR 5201 is subject to attachment. Thus, choice (c) is correct.
CPLR 6203
Where a plaintiff has delivered an order of attachment to a sheriff, the plaintiffs rights in an interest of the defendant in personal property against which a judgment may be enforced are superior to the extent of the amount of the attachment to the rights of any transferee of the property, except:
(a) a transferee who acquired the property before it was levied upon for fair consideration or without knowledge of the order of attachment
(b) a transferee who acquired the property for fair consideration after it was levied upon without knowledge of the levy while it was not in the possession of the sheriff
(c) both (a) and (b) are correct
(d) neither (a) nor (b) is correct.
Answer: (c)
CPLR 6203 clearly indicates that both choices (a) and (b) are correct.
CPLR 6211
An order of attachment may be granted without notice:
(a) only after service of summons
(b) only before service of summons
(c) any time after judgment
(d) before or after service of summons and at any time prior to judgment.
Answer: (d)
CPLR 6211 provides that an order of attachment may be granted without notice, before or after service of summons and at any time prior to judgment. Thus, choice (d) is correct.
CPLR 6211
Where an order of attachment granted without notice is based upon the ground that defendant resides in the State and cannot be personally served despite diligent efforts to do so, the order of attachment shall provide that within a period not to exceed ________ days after levy, the plaintiff shall move, on such notice as the court shall direct, to the defendant, the garnishee, if any, and the sheriff, for an order confirming the order of attachment.
(a) five
(b) seven
(c) ten
(d) twelve
Answer: (a)
CPLR 6211(b) provides that five days is the applicable period. This period applies to any order of attachment granted without notice except one granted on the ground specified in subdivision one of CPLR 6201 (defendant is a nondomiciliary residing without the State, or is a foreign corporation not qualified to do business within the state).
CPLR 6212
Select all correct answers.
On a motion for an order of attachment, the plaintiff must show, by affidavit and such other written evidence that may be submitted:
(a) that there is a cause of action
(b) that it is probable that plaintiff will succeed on the merits
(c) that one or more grounds for attachment exist
(d) that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff.
Answers: (a), (b), (c) and (d)
CPLR 6212(a) clearly indicates that choices (a), (b), (c) and (d) are all correct.
CPLR 6212
On a motion for an order of attachment, the plaintiff must give an undertaking, in a total amount to be fixed by the court. According to the CPLR such amount must be at least:
(a) five hundred dollars
(b) seven hundred and fifty dollars
(c) one thousand dollars
(d) two thousand five hundred dollars.
Answer: (a)
CPLR 6212(b) provides that such amount shall not be less than five hundred dollars. Thus, choice (a) is correct.
CPLR 6212
At any time after property has been levied upon, the defendant may serve upon the plaintiff a written demand that the papers upon which the order of attachment was granted and the levy made be served upon him. If defendant mails the demand to plaintiff, within how many days of the mailing must plaintiff cause the papers demanded to be served upon defendant?
(a) one day
(b) five days
(c) six days
(d) ten days.
Answer: (c)
CPLR 6212(d) provides that not more than one day after service of the demand, the plaintiff shall cause the papers demanded to be served at the address specified in the demand. Because the defendant served the demand by mail, plaintiff gets five additional days under CPLR 2103. Thus, plaintiff must serve the papers demanded within six days of defendant’s mailing of the demand.
CPLR 6214 & 6215
To whom should the plaintiff deliver the order of attachment in order that such person levy upon the defendant’s property?
(a) the county clerk
(b) the court clerk
(c) the sheriff
(d) the judge
Answer: (c)
Property is levied upon by the sheriff. See CPLR 6214 & 6215. Thus, plaintiff should deliver the order of attachment to him. Hence choice (c) is correct.
CPLR 6214 & 6215
Select the best answer.
The sheriff may levy upon property by:
(a) serving a copy of the order of attachment upon the person in possession of defendant’s property, only
(b) taking the property into his actual custody, only
(c) serving a copy of the order of attachment upon the person in possession of defendant’s property or by taking the property into his actual custody
(d) none of the above.
Answer: (c)
CPLR 6214(a) provides that the sheriff shall levy upon any interest of the defendant in personal property, or upon any debt owed to the defendant, by serving a copy of the order of attachment upon the garnishee (i.e., one in possession of property belonging to the defendant), or upon the defendant if the property to be levied upon is in the defendant’s possession or custody. CPLR 6215 provides that as an alternative, the sheriff may levy upon property capable of delivery by taking the property into his actual custody. Thus, choice (c) is the best answer.
