§ 1320 — Levy upon personal property by service of order

New York § 1320

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

Text

§ 1320. Levy upon personal property by service of order. 1. Method of\nlevy. The claiming agent shall levy upon any interest of the defendant\nin personal property, or upon any debt owed to the defendant, by serving\na copy of the order of attachment upon the garnishee, or upon the\ndefendant if property to be levied upon is in the defendant's possession\nor custody, in the same manner as a summons except that such service\nshall not be made by delivery of a copy to a person authorized to\nreceive service of summons solely by a designation filed pursuant to a\nprovision of law other than rule three hundred eighteen of this chapter.\n 2. Effect of levy; prohibition of transfer. A levy by service of an\norder of attachment upon a person other than the defendant is effective\nonly if, at the time of service, such person owes a debt to the\ndefendant or such person is in the possession or custody of property in\nwhich such person knows or has reason to believe the defendant has an\ninterest, or if the claiming authority has stated in a notice which\nshall be served with the order that a specified debt is owed by the\nperson served to the defendant or that the defendant has an interest in\nspecified property in the possession or custody of the person served.\nAll property in which the defendant is known or believed to have an\ninterest then in and thereafter coming into the possession or custody of\nsuch a person, including any specified in the notice, and all debts of\nsuch person, including any specified in the notice, then due and\nthereafter coming due to the defendant, shall be subject to the levy.\nUnless the court orders otherwise, the person served with the order\nshall forthwith transfer or deliver all such property, and pay all such\ndebts upon maturity, up to the amount specified in order of attachment,\nto the claiming agent and execute any document necessary to effect the\npayment, transfer or delivery. After such payment, transfer or\ndelivery, property coming into the possession or custody of the\ngarnishee, or debt incurred by him or her, shall not be subject to the\nlevy. Until such payment, transfer or delivery is made, or until the\nexpiration of ninety days after the service of the order of attachment\nupon him or her, or of such further time as is provided by any\nsubsequent order of the court served upon him or her, whichever event\nfirst occurs, the garnishee is prohibited to make or suffer any sale,\nassignment or transfer of, or any interference with any such property,\nor pay over or otherwise dispose of any such debt, to any person other\nthan the claiming agent except upon direction of the claiming agent or\npursuant to an order of the court. A garnishee, however, may collect or\nredeem an instrument received by him or her for such purpose and he or\nshe may sell or transfer in good faith property held as collateral or\notherwise pursuant to pledge thereof or at the direction of any person\nother than the defendant authorized to direct sale or transfer, provided\nthat the proceeds in which the defendant has an interest be retained\nsubject to the levy. A claiming authority who has specified personal\nproperty or debt to be levied upon in a notice served with an order of\nattachment shall be liable to the owner of the property or the person to\nwhom the debt is owed, if other than the defendant, for any damages\nsustained by reason of the levy. In order to establish the claiming\nauthority's liability, the owner of the property of the person to whom\nthe debt is owed must prove by a preponderance of the evidence that, in\ncausing the levy to occur, the claiming authority acted without\nreasonable cause and not in good faith.\n 3. Seizure by claiming agent; notice of satisfaction. Where property\nor debts have been levied upon by service of an order of attachment, the\nclaiming agent shall take into his or her actual custody all such\nproperty capable of delivery and shall collect and receive all such\ndebts. When the claiming agent has taken into his or her actual custody\nproperty or debts having value sufficient to satisfy the amount\nspecified in the order of attachment, the claiming agent shall notify\nthe defendant and each person upon whom the order of attachment was\nserved that the order of attachment has been fully executed.\n 4. Proceeding to compel payment or delivery. Where property or debts\nhave been levied upon by service of an order of attachment, the claiming\nauthority may commence a special proceeding against the garnishee served\nwith the order to compel the payment, delivery or transfer to the\nclaiming agent of such property or debts, or to secure a judgment\nagainst the garnishee. Notice of petition shall also be served upon the\nparties to the action and the claiming agent. A garnishee may assert any\ndefense or counterclaim which he or she may have asserted against the\ndefendant. The court may permit any adverse claimant to intervene in the\nproceeding and may determine his or her rights in accordance with\nsection one thousand three hundred twenty-seven of this article.\n 5. Failure to proceed. At the expiration of ninety days after a levy\nis made by service of the order of attachment, or of such further time\nas the court, upon motion of the claiming authority on notice to the\nparties to the action, has provided, the levy shall be void except as to\nproperty or debts which the claiming agent has taken into his or her\nactual custody, collected or received or as to which a proceeding under\nsubdivision four hereof has been commenced.\n