Provisional Remedies Flashcards
What are the 6 provisional remedies?
- Attachment
- Preliminary injunction
- Temporary receivership
- Order to seize chattel in action to recover chattel (replevin)
- Notice of pendency
- Temporary restraining order
Court order required for all but notice of pendency
What is attachment?
P obtains order, NY sheriff levies upon (seizes) D’s property in NY, imposing lien on property superior to that of any subsequent lien holder
What are the types of actions where you are allowed attachment?
P must be seeking money damages AND D is unlicensed foreign corp. or non-domiciliary residing outside NY OR D about to conceal/remove assets from NY with intent to defraud creditors or frustrate enforcement of judgment
How do you make a motion for attachment?
- Affidavits showing grounds
- P must show probability of success on merits D is unlicensed foreign corp. or non-domiciliary residing outside NY OR D about to conceal/remove assets from NY
- P must post undertaking/bond to indemnify D for damages/expenses caused by P (D gets damages if attachment was wrongful OR D wins on merits)
Does the motion for attachment have to be made on notice?
No, can be made on notice or ex-parte.
If you have made an ex-parte motion for attachment do you need to do anything else?
Yes, follow up motion to confirm because the order is void unless you follow up.
What does a follow up motion to confirm involve?
For non domiciliary unlicensed, must be served no later than 10 days after. If they are moving assets it cannot be any later than 5 days after.
What is a preliminary injunction?
Used to maintain status quo while equity action is pending
What types of actions would allow preliminary injunctions
Plaintiff is seeking a permanent injunction or D threatens to harm plaintiffs interest in subject matter of action.
What are the motion of preliminary injunction requirements?
Must be made on notice
P must file affidavit showing grounds for equitable relief and probability of success on merits.
What are the grounds for equitable relief
1) Adequacy of legal remedies;
2) Indispensibility of equitable relief;
3) Clean hands;
4) Clear right to ultimate relief;
5) Impending injury must be irreparable.
What if I win preliminary injunction?
Must post bond in case later we determine that it should not have been granted.
How do I obtain a temporary restraining order?
Make motion for preliminary injunction by order to show cause; judge can accelerate return date for preliminary injunction and include TRO
Used while motion for preliminary injunction is pending
What is a temporary receiver?
Person appointed by the court to manage D’s property pending outcome of equity action in which the property is the subject
When is temporary receivership available?
P must be asserting equity claim in which specific property is subject of action AND danger that D will injure or destroy value of property while action pending
