Remedial Measures

Question 1

Attachment

Types of actions in which it may be used

Answer 1

**Types of actions in which it may be used:

P must be seeking money damages AND:

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

Question 2

Attachment

Procedure

Answer 2

1. P makes motion for order of attachment

• affidavits in support of the motion must show one of other of those two grounds for attachment
• Aff must show probability of success for merits of P’s case
• P must provide bond to indemnify D for any damages or expenses caused by the attachment

2. D entitled to damages if:

• Attachment made by improper procedure, OR
• D wins case on merits

3. Motion can be made on notice OR ex parte

• For ex parte, DUE PROCESS requires:
  
  • opp for prompt hearing after the levy to challenge attachment
  • P must make follow-up motion on notice to confirm the ex parte order {on order to show cause = accelerated return date}
  • Ex parte order will become automatically void if P fails to make follow-up motion w/in:
    
    • 10 days after levy (If D is unlic foreign corp)
    • 5 days (If D is fraud moving assets)

Concept: π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon Δ’s property in NY. The levy imposes a lien on the property pending the outcome of the action. This gives π a security interest in the property that is superior to that of any subsequent lien holder. The person served by the sheriff is not allowed to transfer the prop pending the outcome of the action.

Types of personal property: tangible & intangible assets (boat, car, debt owed to D, bank acct)

Question 3

Preliminary Injunctions

Types of Actions in which available

Answer 3

Equity action (not solely $ damages)** **in which P’s complt seeks EITHER:

1. Permanent injunction
2. D threatens to harm the P’s interest in the subject matter of the action

Purpose: To maintain status quo while equity action is pending

Question 4

Preliminary Injunction

Procedure

Answer 4

i. Must be made on notice

• Motion papers can be served with OR after summon
• Motion papers must include
  
  • P’s affidavits showing grounds for equitable relief incl threat of irreparable injury
  • probability of success on the merits of the underlying cause of action
  • P must provide undertaking to indemnify D for damages if later determined the prelim injunction shouldn’t have been granted

Question 5

Preliminary Injunction

Temporary Restraining Order

Answer 5

Purpose: in case of threat of immediate injury, P can ask for ex parte TRO to maintain the status quo for the brief period while the motion for preliminary injunction is being litigated.

(1) π commences an action seeking equitable relief.
(2) π moves (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved.
(3) In the order to show cause, π requests TRO to obtain immediate injunctive relief to maintain status quo until the motion for the preliminary injunction is decided.

Question 6

Temporary Receivership

Types of actions where available

Answer 6

(1) P must be asserting an equity claim in which specific property is the subject matter
of the action, AND

(2) There is a danger that D will injure or destroy the value of the property while the action is pending.

Question 7

Temporary Receivership

Answer 7

Concept: person appointed by the court to manage property in the D’s possession. Takes over management of the D’s property.

Procedure: Appointment of Temp Rec ust be made on notice

Question 8

Seizure of Chattel

Types of Action in which available

Answer 8

Action that seeks to recover possession of a chattel [tangible personal prop]

{Receive through replevin}

Question 9

Seizure of Chattel

Procedure

Answer 9

Concept: To ensure enforcement of a judgment awarding possession of the chattel to P.The sheriff, who seizes the chattel, will retain custody of the chattel (“impoundment”). Otherwise, if the chattel is lost or destroyed while the action is pending, the judgment will be limited to the monetary value of the chattel.

Procedure:

i. Motion for an order of seizure

• P’s affidavit of merit must show P will probably succeed on the merits of the underlying cause of action
• P must p_rovide an undertaking_ to indemnify the D for damages for wrongful seizure

ii. Motion can be made ex parte.
* Addtional requirements:

1. P must show in aff a t_hreat of immediate loss of the chattel_
2. P must make follow-up motion on notice to confirm the ex-parte order
   
   1. w/in 5 days after the seizure

Question 10

Notice of Pendency

Types of Actions in which available

Answer 10

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.

Question 11

Notice of Pendency

Answer 11

Concept: 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 π.

–> renders title UNMARKETABLE

Procedure:

i. P files notice of pendency with county clerk of county where real prop located [record notice of pendency of P’s action]

• P does NOT need court order to file
• No bond required
• *Remedy for improper notice**:
  i. Motion to cancel notice of pendency
• *Duration:**
  i. Effective 3 years after filing
  ii. P can move or 3 year extension, but must make motion for extension prior to expiration of original 3 years
• Once expires, notice of pendency VOID, and P can never obtain one for same prop for same CoA
• Exception – mortgage foreclosure action – ct may grant motion for a new notice