§ 7102 — Seizure of chattel on behalf of plaintiff

New York § 7102

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 71: Recovery of Chattel

Text

§ 7102. Seizure of chattel on behalf of plaintiff. (a) Seizure of\nchattel. When the plaintiff delivers to a sheriff an order of seizure,\nthe papers on which the order was granted, the undertaking and a summons\nand complaint bearing the index number and the date of filing with the\nclerk of the court, in the action to recover the chattel, he shall seize\nthe chattel in accordance with the provisions of the order and without\ndelay.\n (b) Service. The sheriff shall serve upon the person from whose\npossession the chattel is seized a copy of the order of seizure, the\npapers on which the order was granted, and the undertaking delivered to\nhim by the plaintiff. Unless the order of seizure provides otherwise,\nthe papers delivered to him by the plaintiff, shall be personally served\nby the sheriff on each defendant not in default in the same manner as a\nsummons or as provided in section 314; if a defendant has appeared he\nshall be served in the manner provided for service of papers generally.\n (c) Affidavit. The application for an order of seizure shall be\nsupported by an affidavit which shall clearly identify the chattel to be\nseized and shall state:\n 1. that the plaintiff is entitled to possession by virtue of facts set\nforth;\n 2. that the chattel is wrongfully held by the defendant named;\n 3. whether an action to recover the chattel has been commenced, the\ndefendants served, whether they are in default, and, if they have\nappeared, where papers may be served upon them;\n 4. the value of each chattel or class of chattels claimed, or the\naggregate value of all chattels claimed;\n 5. if the plaintiff seeks the inclusion in the order of seizure of a\nprovision authorizing the sheriff to break open, enter and search for\nthe chattel, the place where the chattel is located and facts sufficient\nto establish probable cause to believe that the chattel is located at\nthat place;\n 6. that no defense to the claim is known to the plaintiff; and\n 7. if the plaintiff seeks an order of seizure without notice, facts\nsufficient to establish that unless such order is granted without\nnotice, it is probable the chattel will become unavailable for seizure\nby reason of being transferred, concealed, disposed of, or removed from\nthe state, or will become substantially impaired in value.\n (d) Order of seizure. 1. Upon presentation of the affidavit and\nundertaking and upon finding that it is probable the plaintiff will\nsucceed on the merits and the facts are as stated in the affidavit, the\ncourt may grant an order directing the sheriff of any county where the\nchattel is found to seize the chattel described in the affidavit and\nincluding, if the court so directs, a provision that, if the chattel is\nnot delivered to the sheriff, he may break open, enter and search for\nthe chattel in the place specified in the affidavit. The plaintiff shall\nhave the burden of establishing the grounds for the order.\n 2. Upon a motion for an order of seizure, the court, without notice to\nthe defendant, may grant a temporary restraining order that the chattel\nshall not be removed from the state if it is a vehicle, aircraft or\nvessel or, otherwise, from its location, transferred, sold, pledged,\nassigned or otherwise disposed of or permitted to become subject to a\nsecurity interest or lien until further order of the court. Unless the\ncourt otherwise directs, the restraining order does not prohibit a\ndisposition of the chattel to the plaintiff. Disobedience of the order\nmay be punished as a contempt of court.\n 3. An order as provided in paragraph one of this subdivision may be\ngranted without notice only if, in addition to the other prerequisites\nfor the granting of the order, the court finds that unless such order is\ngranted without notice it is probable the chattel will become\nunavailable for seizure by reason of being transferred, concealed,\ndisposed of, or removed from the state, or will become substantially\nimpaired in value.\n 4. An order of seizure granted without notice shall provide that the\nplaintiff shall move for an order confirming the order of seizure on\nsuch notice to the defendant and sheriff and within such period, not to\nexceed five days after seizure, as the court shall direct. Unless the\nmotion is made within such period, the order of seizure shall have no\nfurther effect and shall be vacated on motion and any chattel seized\nthereunder shall be returned forthwith to the defendant. Upon the motion\nto confirm, the plaintiff shall have the burden of establishing the\ngrounds for confirmation.\n (e) Undertaking. The undertaking shall be executed by sufficient\nsurety, acceptable to the court. The condition of the undertaking shall\nbe that the surety is bound in a specified amount, not less than twice\nthe value of the chattel stated in the plaintiff's affidavit, for the\nreturn of the chattel to any person to whom possession is awarded by the\njudgment, and for payment of any sum awarded by the judgment against the\nperson giving the undertaking. A person claiming only a lien on or\nsecurity interest in the chattel may except to the plaintiff's surety.\n (f) Disposition of chattel by sheriff. Unless the court orders\notherwise, the sheriff shall retain custody of a chattel for a period of\nten days after seizure where seizure is pursuant to an order granted on\nnotice, and until served with an order of confirmation where seizure is\npursuant to an order granted without notice. At the expiration of such\nperiod, the sheriff shall deliver the chattel to the plaintiff if there\nhas not been served upon him a notice of exception to plaintiff's\nsurety, a notice of motion for an impounding or returning order, or the\nnecessary papers to reclaim the chattel. Upon failure of the surety on\nplaintiff's undertaking to justify, the sheriff shall deliver possession\nof the chattel to the person from whom it was seized.\n