Provisional Remedies

Question 1

What are provisional remedies?

Answer 1

P’s rights may be jeopardized while the matter he brought is pending; provisional remedies provide a measure of security to P while he awaits final judgment.

Question 2

What are the five provisional remedies?

Answer 2

1. Attachment
2. Preliminary injunction
3. Temporary receivership
4. Order to seize chattel in an action to recover chattel (replevin)
5. Notice of pendency

Question 3

What is the only one provisional remedy that does NOT require a court order?

Answer 3

Notice of pendency

Question 4

What is attachment?

Answer 4

Provides security for enforcement of judgment –

P obtains an order of attachment from the court and gives it to NY Shefiff who levies upon D’s property in NY, giving P a security interest (constructive lien) in the property SUPERIOR TO any subsequent lien holder! (i.e., it “freezes” the property)

Question 5

How is real property attached?

Answer 5

Sheriff files the order of attachment with the county clerk

Question 6

What personal property qualifies for attachment?

Answer 6

Tangible personal property or intangible property

Question 7

How is personal property attached?

Answer 7

Sheriff delivers the order of attachment to a person in NY who holds the property interest in the property

Question 8

When can an attachment be used?

Answer 8

P MUST be seeking money damages AND

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

Question 9

What is the process for making an attachment?

Answer 9

1. P must make a motion for the order of attachment;
2. Affidavits must show probability of success on the merits on the underlying action
3. P must provide an undertaking (bond) to provide indemnity for damages or expenses caused by attachment

Question 10

When is defendant entitled to damages when there is an order for attachment?

Answer 10

D is entitled to damages IF:

1. Attachment made by improper procedure, OR
2. D wins on the merits

Question 11

What must P satisfy to attach ex parte?

Answer 11

1. D must be given a prompt hearing after there has been a levy on his property (due process)
2. P must make a follow-up motion on notice to confirm the order after the attachment (by order to show cause)

Question 12

When will attachment become automatically void? (3 situations)

Answer 12

Ex parte order will be automatically void IF P fails to make motion to confirm within appropriate time.

Also,

IF D is an unlicensed foreign corp. OR a non-resident non-domiciliary, motion to confirm must be served on D no later than 10 days after the levy.

IF D is fraudulently moving assets, motion to confirm must be served no later than 5 days after the levy.

Question 13

What actions may ask for a preliminary injunction?

Answer 13

An equity action where either:

1. P seeks a permanent injunction, OR
2. D threatens to harm P’s interest in the subject matter of the action.

Question 14

What is the procedure for a preliminary injunction?

Answer 14

Through a motion on notice:

1. Affidavits must show grounds for equitable relief, including threat of irreparable injury;
2. P must show probability of success on the merits; AND
3. P must provide undertaking to indemnify the defendant for damages if it is determined that preliminary injunction should NOT have been granted

Question 15

What are the requirements for obtaining a temporary restraining order ex parte (TRO)?

Answer 15

In a case involving the threat of immediate injury, P can ask for a TRO ex parte

(Purpose: maintain TRO until a preliminary injunction is being decided)

Ex parte TRO application MUST show that “significant prejudice” to the party seeking the TRO will occur if notice is given to the opposition.

Question 16

What is temporary receiver?

Answer 16

Person appointed by the court to manage property in D’s possession

Question 17

When is temporary receivership available?

Answer 17

Equity claim where the specific property is the subject matter of the action AND there is danger D will destroy or injure the value of the property

Question 18

In what type of actions is seizure of chattel available?

Answer 18

Action seeking to recover possession of a chattel

Question 19

What are the requirements for the motion for an order of seizure of chattel?

Answer 19

1. P’s affidavits must show probability of success on the merits
2. P must provide and undertaking to indemnify D for damages if it is a wrongful seizure

Question 20

What are the additional requirements for the seizure of chattel in an ex parte motion?

Answer 20

1. P must show threat of immediate loss of chattel;
2. P musst make a follow-up motion on notice to confirm the order of seizure within 5 days of the seizure

Question 21

When can the notice of pendency be used?

Answer 21

When the action is an equity action

(Judgment will have direct effect on title, possession, or use on real property)

Question 22

When may you file a notice of pendency?

When must you file a notice of pendency?

Answer 22

P may file in an equity acton where the judgment will have a direct effect on title, possession, or use or real property, e.g., specific performance or ejectment.

BUT in mortgage foreclosure, P MUST file notice of pendency (statutory requirement)

Question 23

What is the remedy to the notice of pendency?

Answer 23

Make a motion to cancel the notice

Question 24

What is the duration of notice of pendency?

Answer 24

Three years; BUT P may extend for another three years (if motion is filed within the first three years)

(N.B. If not extended timely, notice is void and P CANNOT get another one on the same property in the same action (exception: mortgage foreclosure))