NYP 8.txt

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Author:
twiggy924
ID:
26557
Filename:
NYP 8.txt
Updated:
2010-07-13 00:40:26
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Provisional Remedies
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Provisional Remedies
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  1. What are the 5 provisional remedies?
    • Attachment
    • Preliminary injunction
    • Temporary receivership
    • Order to seize chattel in an action to recover the chattel
    • Notice of pendency
  2. ATTACHMENT

    1) What is it?
    2) What can be attached?
    1) ORDER from a court that authorizes a NY Sheriff to impose a lien on ∆'s property in NY. This gives π a security interest in property that is superior to that of any subsequent lien-holder

    2) ANY PROPERTY IN NY, whether real or personal, can be attached
  3. ATTACHMENT

    1) How is real property attached?
    2) Personal property?
    1) Sheriff files an ORDER OF ATTACHMENT with the clerk of the county where the real property is located

    2) ACTUAL seizure, or constructive seizure (delivery of order of attachment to person who holds ∆'s property interest)
  4. ATTACHMENT

    In what ACTIONS may attachment be used?
    Actions for MONEY damages where

    • ∆ is an unlicensed foreign corporation, OR
    • ∆ is a non-domiciliary residing outside NY, OR
    • ∆ is about to conceal or remove assets from NY with intent to defraud creditors, or frustrate enforcement of justice
  5. What is the procedure for seeking an order for attachment?
    1) π MOVES for an order of attachment

    • 2) MOTION MUST INCLUDE:
    • (i) affidavits showing money damages, identity of ∆, or ∆'s intent to conceal or remove assets from NY
    • (ii) probability of success on merits of action
    • (iii) undertaking by π (i.e., π must post bond to indemnify ∆ from damages)

    3) FOLLOW-UP MOTION TO CONFIRM—within 10 days of levy (for unlicensed corporations or non-domiciliary) or 5 days of levy (for fraudulent movement or concealment of assets)
  6. PRELIMINARY INJUNCTION (PL)

    1) What is it?
    2) What types of actions may it be used?
    1) MAINTAIN STATUS QUO in an

    • 2) EQUITY action where the π's complaint seeks–
    • (i) a permanent injunction, OR
    • (ii) ∆ threatens harm to π's interest in the subject matter of the action
  7. Requirements to Obtain a PRELIMINARY INJUNCTION
    • (1) MOTION on notice served with or after the summons
    • (2) GROUNDS for equitable relief (including irreparable injury)
    • (3) LIKELIHOOD OF SUCCESS on the merits
    • (4) UNDERTAKING to indemnify ∆ for damages if it is later determined that P/L should not have been granted
  8. Procedure to Obtain a TEMPORARY RESTRAINING ORDER
    • In a case where there is a threat of immediate, irreparable harm, π may request a TRO ex parte.
    • Procedure:
    • (1) π commences action for equitable relief
    • (2) Move for PL in through an Order to Show Cause (OTSC)
    • (3) In the OTSC, request TRO to obtain immediate injunctive relief.

    OTSC must contain an affidavit that there will be significant prejudice to the party seeking TRO if notice is provided to the adversary.
  9. TEMPORARY RECEIVERSHIP

    1) What is it?
    2) In what actions is it available?
    1) A PERSON appointed by the court to manage ∆'s property pending the outcome of an EQUITY ACTION, in which the property is the subject of the action

    • 2) AVAILABLE IN AN ACTION WHERE–
    • (i) π asserts an equity claim in which specific property is the subject matter of the action, AND
    • (iii) Danger that ∆ will injure or destroy the value of the property while the action is pending
  10. TEMPORARY RECEIVERSHIP

    How can one be obtained?
    • Motion on notice
    • Grounds for equitable relief (property is subject of equity action, irreparable harm to property)
    • Likelihood of success on merits of claim
    • Undertaking to indemnify ∆
  11. SEIZURE OF CHATTEL

    1) Can seek in what type of action?
    2) How do you obtain an order for seizure of chattel?
    1) ACTION FOR REPLEVIN

    • 2) PROCEDURE FOR OBTAINING–
    • Motion on notice (or ex parte)
    • Likelihood of success on merits
    • Undertaking to indemnify ∆
  12. SEIZURE OF CHATTEL

    If the motion is made ex parte, what must π do?
    • (1) Show threat of immediate loss of chattel
    • (2) Make follow-up motion in ORDER TO SHOW CAUSE to confirm seizure within 5 DAYS of impoundment (to satisfy due process)
  13. In what type(s) of cases is NOTICE OF PENDENCY available?
    EQUITY ACTIONS in which the judgment will have a DIRECT EFFECT on title, possession, or use of real property
  14. NOTICE OF PENDENCY
    RECORD NOTICE to potential buyers or mortgagees that any interest in the property may be subordinate to that of π
  15. What happens when 3-year Period expires for a Notice of Pendency?
    π can move for a 3-year extension PRIOR to expiration of the original 3-year period.

    • If original 3-year period expires:
    • (1) The notice of pendency becomes void and has no further effect; AND
    • (2) π cannot obtain another notice of pendency on the same property for the same cause of action.

    EXCEPTION: In a mortgage foreclosure action, the court may grant a motion for a new notice of pendency even though the original notice expired without renewal.
  16. Duration of Notice of Pendency
    THREE YEARS after filing.
  17. NOTICE OF PENDENCY

    How is one obtained?
    π files notice of pendency with county clerk where real property is located

    • No court order required
    • No undertaking (i.e., posting of bond) is required

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