§ 1312 — Provisional remedies; generally

New York § 1312

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 13-A: Proceeds of a Crime-forfeiture

Text

§ 1312. Provisional remedies; generally. 1. The provisional remedies\nof attachment, injunction, receivership and notice of pendency provided\nfor herein, shall be available in all actions to recover property under\nthis article.\n 2. On a motion for a provisional remedy, the claiming authority shall\nstate whether any other provisional remedy has previously been sought in\nthe same action against the same defendant. The court may require the\nclaiming authority to elect between those remedies to which it would\notherwise be entitled.\n 3. A court may grant an application for a provisional remedy when it\ndetermines that: (a) there is a substantial probability that the\nclaiming authority will be able to demonstrate at trial that the\nproperty is the proceeds, substituted proceeds, instrumentality of the\ncrime or real property instrumentality of the crime, that the claiming\nauthority will prevail on the issue of forfeiture, and that failure to\nenter the order may result in the property being destroyed, removed from\nthe jurisdiction of the court, or otherwise be unavailable for\nforfeiture; (b) the need to preserve the availability of the property\nthrough the entry of the requested order outweighs the hardship on any\nparty against whom the order may operate; and (c) in an action relating\nto real property, that entry of the requested order will not\nsubstantially diminish, impair, or terminate the lawful property\ninterest in such real property of any person or persons other than the\ndefendant or defendants.\n 4. Upon motion of any party against whom a provisional remedy granted\npursuant to this article is in effect, the court may issue an order\nmodifying or vacating such provisional remedy if necessary to permit the\nmoving party to obtain funds for the payment of reasonable living\nexpenses, other costs or expenses related to the maintenance, operation,\nor preservation of property which is the subject of any such provisional\nremedy or reasonable and bona fide attorneys' fees and expenses for the\nrepresentation of the defendant in the forfeiture proceeding or in a\nrelated criminal matter relating thereto, payment for which is not\notherwise available from assets of the defendant which are not subject\nto such provisional remedy. Any such motion shall be supported by an\naffidavit establishing the unavailability of other assets of the moving\nparty which are not the subject of such provisional remedy for payment\nof such expenses or fees. That funds sought to be released under this\nsubdivision are alleged to be the proceeds, substituted proceeds,\ninstrumentality of a crime or real property instrumentality of a crime\nshall not be a factor for the court in considering and determining a\nmotion made pursuant to this subdivision.\n