N.Y. CPLR § 1312

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 1312 Provisional remedies; generally. 1 § 1312. Provisional remedies; generally. 1. The provisional remediesof attachment, injunction, receivership and notice of pendency providedfor herein, shall be available in all actions to recover property underthis article.2. On a motion for a provisional remedy, the claiming authority shallstate whether any other provisional remedy has previously been sought inthe same action against the same defendant. The court may require theclaiming authority to elect between those remedies to which it wouldotherwise be entitled.3. A court may grant an application for a provisional remedy when itdetermines that: (a) there is a substantial probability that theclaiming authority will be able to demonstrate at trial that theproperty is the proceeds, substituted proceeds, instrumentality of thecrime or real property instrumentality of the crime, that the claimingauthority will prevail on the issue of forfeiture, and that failure toenter the order may result in the property being destroyed, removed fromthe jurisdiction of the court, or otherwise be unavailable forforfeiture; (b) the need to preserve the availability of the propertythrough the entry of the requested order outweighs the hardship on anyparty against whom the order may operate; and (c) in an action relatingto real property, that entry of the requested order will notsubstantially diminish, impair, or terminate the lawful propertyinterest in such real property of any person or persons other than thedefendant or defendants.4. Upon motion of any party against whom a provisional remedy grantedpursuant to this article is in effect, the court may issue an ordermodifying or vacating such provisional remedy if necessary to permit themoving party to obtain funds for the pa medy grantedpursuant to this article is in effect, the court may issue an ordermodifying or vacating such provisional remedy if necessary to permit themoving party to obtain funds for the payment of reasonable livingexpenses, other costs or expenses related to the maintenance, operation,or preservation of property which is the subject of any such provisionalremedy or reasonable and bona fide attorneys' fees and expenses for therepresentation of the defendant in the forfeiture proceeding or in arelated criminal matter relating thereto, payment for which is nototherwise available from assets of the defendant which are not subjectto such provisional remedy. Any such motion shall be supported by anaffidavit establishing the unavailability of other assets of the movingparty which are not the subject of such provisional remedy for paymentof such expenses or fees. That funds sought to be released under thissubdivision are alleged to be the proceeds, substituted proceeds,instrumentality of a crime or real property instrumentality of a crimeshall not be a factor for the court in considering and determining amotion made pursuant to this subdivision.