Provisional Remedies

Question 1

What are the five provisional remedies?

Answer 1

1. Attachment
2. Preliminary Injunction
3. Temporary Receivership
4. Order to seize chattel
5. Notice of pendancy

Question 2

When is attachment appropriate?

Answer 2

To provide security for enforcement of a monetary judgment.

Question 3

What is the procedure for an attachment?

Answer 3

1. P makes an order of attachment (on notice or ex parte)
2. P gets an order from the judge on D’s property in NY
3. P gives order to a NY sheriff
4. sheriff levies on D’s property in NY by filing the order with the clerk of the county in which the property is located.

Question 4

What must P’s order of attachment include?

Answer 4

1. Affidavits showing one of the grounds for attachment + seeking money
2. Affidavit shows probability of P’s success on the merits
3. P provides an undertaking

Question 5

What are the additional requirements if P makes an ex parte motion for attachment?

Answer 5

D must get the opportunity for a prompt hearing after the levy, and P must make a follow up motion to confirm the ex parte order.

Question 6

In an ex parte order of attachment and D is a non-domiciliary of NY or unlicensed foreign corporation, when must P serve her motion to confirm?

Answer 6

No later than 10 days after the levy.

Question 7

In an ex parte order of attachment based on the fact that D is fraudulently moving assets, when must P serve her motion to confirm?

Answer 7

No later than 5 days after the levy.

Question 8

What are the two types of actions that allow for attachment?

Answer 8

P is seeking damages and:

(1) D is an unlicensed foreign corporation or a non-NY domiciliary residing outside of NY, OR
(2) D is about to conceal or remove assets from NY with the intent to frustrate judgment

Question 9

What is D’s remedy if the attachment was improper or D wins the case on the merits?

Answer 9

D can seek damages from P.

Question 10

When can a party get a preliminary injunction?

Answer 10

When they are seeking either:
(1) a permanent injunction, or
(2) D threatens to harm P’s interest in the subject of the action
[must be seeking an equitable remedy]

Question 11

Can a motion for preliminary injunction be made ex parte?

Answer 11

No, a motion for preliminary injunction must be made on notice.

Question 12

What must notice of the preliminary injunction action include?

Answer 12

P’s affidavit must show:
1. Grounds for relief
2. Probability of success on the merits
and 3. P must provide an undertaking

Question 13

What is a temporary restraining order?

Answer 13

A way to get immediate injunctive relief, typically granted ex parte. The order will maintain the status quo while the motion for preliminary injunction is being litigated.

Question 14

What is the procedure for getting a TRO?

Answer 14

Make a motion for preliminary injunction by order to show cause and request a TRO, schedule an early return date for the preliminary injunction, and in the order, the judge can include the TRO.

Question 15

If the motion includes a request for a TRO and is made ex parte, what else must the plaintiff show?

Answer 15

Significant prejudice to the party if the adversary is notified before the TRO issues.

Question 16

What is the effect of service of a TRO on an adverse party?

Answer 16

That party is immediately enjoined from doing what the TRO prohibits pending the resolution of the preliminary injunction motion.

Question 17

What is a temporary receivership?

Answer 17

A person is appointed by the court to manage D’s property (stopping D from being able to sell/transfer/squander/etc.).

Question 18

When can a party seek temporary receivership?

Answer 18

When P is asserting an equity claim (and not monetary), in which specific property is the subject matter of the action, and there is a danger D will destroy it or its value while the action is pending.

Question 19

Can a temporary receivership motion be made ex parte?

Answer 19

No - a request for a temporary receivership must be made on notice.

Question 20

When can a party bring an action for seizure of a chattel?

Answer 20

Only when the underlying action is to recover possession of a chattel (personal, tangible property)

Question 21

What is the procedure to get seizure of a chattel?

Answer 21

P must show that she will likely succeed on the underlying merits, and she must provide an undertaking.

Question 22

If a motion to seize chattel is made ex parte, what are the additional requirements P must meet?

Answer 22

(1) show threat of immediate loss of the chattel, and

(2) if granted, P must make a follow up motion no later than 5 days post-seizure.

Question 23

When can a party file a notice of pendency?

Answer 23

In an equity action in which the judgment will have a direct effect on real property (that is the subject of the litigation).

Question 24

What is the effect of a notice of pendency?

Answer 24

It gives record notice to any potential buyers that any interest they acquire will be subordinate to P’s if P wins the suit.

Question 25

Must the party seek court approval before filing a notice of pendency?

Answer 25

No - court approval is not required to file a notice of pendency.

Question 26

When must a mortgagee (creditor) file a notice of pendency?

Answer 26

Before a foreclosure proceeding.

Question 27

What is the procedure for filing a notice of pendency?

Answer 27

P must file the notice with the clerk of the county in which the property is located. No bond or undertaking is required.

Question 28

What is D’s remedy if P improperly files a notice of pendency?

Answer 28

D makes a notice to cancel the notice of pendency.

Question 29

How long does a notice of pendency last?

Answer 29

3 years after filing, but P can move for an extension so long as that’s done before the notice expires.

Question 30

If a notice of pendency expires - can P get another one on that property for the same cause of action?

Answer 30

No - one a notice of pendency expires, the plaintiff cannot get another on the same property based on the same cause of action.

Question 31

For which remedies must P provide an undertaking?

Answer 31

1. Attachment
2. Preliminary Injunction
3. Seizure of chattel

Question 32

If P is entitled to multiple remedies, can she use them all?

Answer 32

No, the court will require P to elect between them.