N.Y. Civil Practice Law & Rules Section 1312
Provisional remedies

  • generally

1.

The provisional remedies of attachment, injunction, receivership and notice of pendency provided for herein, shall be available in all actions to recover property under this article.

2.

On a motion for a provisional remedy, the claiming authority shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the claiming authority to elect between those remedies to which it would otherwise be entitled.

3.

A court may grant an application for a provisional remedy when it determines that:

(a)

there is a substantial probability that the claiming authority will be able to demonstrate at trial that the property is the proceeds, substituted proceeds, instrumentality of the crime or real property instrumentality of the crime, that the claiming authority will prevail on the issue of forfeiture, and that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the court, or otherwise be unavailable for forfeiture;

(b)

the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate; and

(c)

in an action relating to real property, that entry of the requested order will not substantially diminish, impair, or terminate the lawful property interest in such real property of any person or persons other than the defendant or defendants.

4.

Upon motion of any party against whom a provisional remedy granted pursuant to this article is in effect, the court may issue an order modifying or vacating such provisional remedy if necessary to permit the moving party to obtain funds for the payment of reasonable living expenses, other costs or expenses related to the maintenance, operation, or preservation of property which is the subject of any such provisional remedy or reasonable and bona fide attorneys’ fees and expenses for the representation of the defendant in the forfeiture proceeding or in a related criminal matter relating thereto, payment for which is not otherwise available from assets of the defendant which are not subject to such provisional remedy. Any such motion shall be supported by an affidavit establishing the unavailability of other assets of the moving party which are not the subject of such provisional remedy for payment of such expenses or fees. That funds sought to be released under this subdivision are alleged to be the proceeds, substituted proceeds, instrumentality of a crime or real property instrumentality of a crime shall not be a factor for the court in considering and determining a motion made pursuant to this subdivision.

Source: Section 1312 — Provisional remedies; generally, https://www.­nysenate.­gov/legislation/laws/CVP/1312 (updated Oct. 11, 2019; accessed Jun. 8, 2024).

1310
Definitions
1311
Forfeiture actions
1311‑A
Subpoena duces tecum
1311‑B
Money judgment
1312
Provisional remedies
1313
Debt or property subject to attachment
1314
Attaching creditor’s rights in personal property
1315
Discharge of garnishee’s obligation
1316
Order of attachment on notice
1317
Order of attachment without notice
1318
Motion papers
1319
Service of summons
1320
Levy upon personal property by service of order
1321
Levy upon personal property by seizure
1322
Levy upon real property
1323
Additional undertaking to carrier garnishee
1324
Claiming agent’s duties after levy
1325
Garnishee’s statement
1326
Disclosure
1327
Proceedings to determine adverse claims
1328
Discharge of attachment
1329
Vacating or modifying attachment
1330
Annulment of attachment
1331
Return of property
1332
Disposition of attachment property after execution issued
1333
Grounds for preliminary injunction and temporary restraining order
1334
Motion papers
1335
Temporary restraining order
1336
Vacating or modifying preliminary injunction or temporary restraining order
1337
Ascertaining damages sustained by reason of preliminary injunction or temporary restraining order
1338
Appointment and powers of temporary receiver
1339
Oath
1340
Undertaking
1341
Accounts
1342
Removal
1343
Notice of pendency
1344
Filing, content and indexing of notice of pendency
1345
Service of summons
1346
Duration of notice of pendency
1347
Motion for cancellation of notice of pendency
1348
Undertaking for cancellation of notice of pendency
1349
Disposal of property
1350
Rules of procedure
1351
Application of article
1352
Preservation of other rights and remedies

Accessed:
Jun. 8, 2024

Last modified:
Oct. 11, 2019

§ 1312’s source at nysenate​.gov

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