Provisional Remedies

Question 1

What are provisional remedies and what are the 5 types?

Answer 1

Provisional remedies provide a measure of security to plaintiffs for the ultimate enforcement of a potential judgment.

There are 5 types of provisional remedies:

1. Attachment
2. Preliminary injunction
3. Temporary receivership
4. Order to seize chattel (replevin)
5. Notice of pendency (lis pendens)

A court order is required for all provisional remedies except for notice of pendency.

Question 2

What is an attachment and in what type of actions may it be used?

Answer 2

Attachment imposes a lien on the property pending the outcome of the action. It gives the plaintiff a security interest in the property that is superior to that of any subsequent lien holder. The levy can be made on real property or personal property located in NY.

Plaintiff must be seeking money damages AND

1. Defendant is an unlicensed foreign corporation or a non-domiciliary residing outside of NY; OR
2. Defendant is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment.

These defendants are considered security risks.

Question 3

What is a preliminary injunction and in what type of actions is the remedy available?

Answer 3

A preliminary injunction is used to maintain the status quo while an equity action is pending.

It is available in an equity action in which plaintiff’s complaint seeks either:

1. Permanent injunction; OR
2. Defendant threatens to harm plaintiff’s interest in the subject matter of the action.

Question 4

What is a temporary restraining order (TRO)?

Answer 4

This is a motion made by order to show cause (ex parte), there by restraining the defendant until hearing on motion for preliminary injunction. It will be granted ex parte upon showing that notice to the opponent would cause significant prejudice to the moving party.

Question 5

What is a temporary recievership and in what type of actions is the remedy available?

Answer 5

This is where the court appoints a temporary receiver, a person appointed by the court to manage property in the defendant’s possession - essentially taking over management of the defendant’s property.

The types of actions this is available for:

1. Plaintiff must be asserting an equity claim in which specific property is the subject matter of the action, AND
2. There is a danger that defendant will injure or destry the value of the property while the action is pending.

Question 6

What is replevin and in what type of actions is the remedy available?

Answer 6

Replevin is the seizure of chattel. This is only available in an action recover a chattel, where someone takes your personal property.

Question 7

What is a notice of pendency and what type of actions is it available?

Answer 7

In an equity action in which the judgment will have a direct effect on real property, the filing of a notice of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the plaintiff. It renders title unmarketable.

This may be used in an equity action in which the judgment will have a direct effect on title, possession or use of real property, e.g. specific performance, ejectment. In a mortgage foreclosure, the filing of a notice of pendency is statutorily required.