H. Provisional Remedies Flashcards
What is Attachment?*
Sheriff’s seizure of D’s property
- Help secure enforcement of money judgment
- In P’s favour
When is Attachment allowed?
1) Action for money judgment
2) Either;
- Defendant is Non-domiciliary/Foreign corporation
- Defendant is Domiciliary + can NOT be personally served (despite diligent efforts)
- Defendant has/will assign/encumber/remove property from NY + intends to defraud creditors/frustrate enforcement of judgment
What is required for order of Attachment?*
1) Probability of success on merits (affidavits + other evidence)
- Preliminary show of cause
2) Undertaking (Bond)
- Amount set by Court
3) Filing ALL docs including;
- Order of attachment;
- Relevant papers;
- Summons; and
- Complaint.
4) Within 10 days of Order of Attachment granted
When may Preliminary Injunction be granted?
D threatens to harm P’s rights => Could render judgment ineffectual
P seeks judgment restraining D from injurious conduct => Could injure P if committed during action
NOT if P solely seeks money damages
What is required for Preliminary Injunction?*
1) Notice to D
2) Supporting affidavits
3) Likelihood of success based on merits
4) Threat of irreparable injury
5) Balance of equities in P’s favour
6) Undertaking (Bond)
- Amount set by court
- If P NOT entitled to relief => P must pay damages + costs sustained by injunction to D
What is Temporary Restraining Order (TRO)?*
Immediate injunctive relief to P
- While Court determines motion for PI
What is required for TRO?*
Immediate + Irreparable injury/loss/damages will result
- UNLESS D is restrained before hearing on PI
Undertaking (Bond)
- At court’s discretion!!!
What is Notice of Pendency?*
1) Judgment in lawsuit may affect title/possession/use/enjoyment of D’s property
2) Notice prevents potential transferee/mortgagee of D’s property from acquiring ‘innocent purchaser for value’ status
3) By placing cloud on marketability of D’s title to property during lawsuit
NO motion
NO bond
