N.Y. CPLR § 7102

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 7102 Seizure of chattel on behalf of plaintiff § 7102. Seizure of chattel on behalf of plaintiff. (a) Seizure ofchattel. When the plaintiff delivers to a sheriff an order of seizure,the papers on which the order was granted, the undertaking and a summonsand complaint bearing the index number and the date of filing with theclerk of the court, in the action to recover the chattel, he shall seizethe chattel in accordance with the provisions of the order and withoutdelay.(b) Service. The sheriff shall serve upon the person from whosepossession the chattel is seized a copy of the order of seizure, thepapers on which the order was granted, and the undertaking delivered tohim by the plaintiff. Unless the order of seizure provides otherwise,the papers delivered to him by the plaintiff, shall be personally servedby the sheriff on each defendant not in default in the same manner as asummons or as provided in section 314; if a defendant has appeared heshall be served in the manner provided for service of papers generally.(c) Affidavit. The application for an order of seizure shall besupported by an affidavit which shall clearly identify the chattel to beseized and shall state:1. that the plaintiff is entitled to possession by virtue of facts setforth;2. that the chattel is wrongfully held by the defendant named;3. whether an action to recover the chattel has been commenced, thedefendants served, whether they are in default, and, if they haveappeared, where papers may be served upon them;4. the value of each chattel or class of chattels claimed, or theaggregate value of all chattels claimed;5. if the plaintiff seeks the inclusion in the order of seizure of aprovision authorizing the sheriff to break open, enter and search forthe chattel, the place where the chattel is l claimed;5. if the plaintiff seeks the inclusion in the order of seizure of aprovision authorizing the sheriff to break open, enter and search forthe chattel, the place where the chattel is located and facts sufficientto establish probable cause to believe that the chattel is located atthat place;6. that no defense to the claim is known to the plaintiff; and7. if the plaintiff seeks an order of seizure without notice, factssufficient to establish that unless such order is granted withoutnotice, it is probable the chattel will become unavailable for seizureby reason of being transferred, concealed, disposed of, or removed fromthe state, or will become substantially impaired in value.(d) Order of seizure. 1. Upon presentation of the affidavit andundertaking and upon finding that it is probable the plaintiff willsucceed on the merits and the facts are as stated in the affidavit, thecourt may grant an order directing the sheriff of any county where thechattel is found to seize the chattel described in the affidavit andincluding, if the court so directs, a provision that, if the chattel isnot delivered to the sheriff, he may break open, enter and search forthe chattel in the place specified in the affidavit. The plaintiff shallhave the burden of establishing the grounds for the order.2. Upon a motion for an order of seizure, the court, without notice tothe defendant, may grant a temporary restraining order that the chattelshall not be removed from the state if it is a vehicle, aircraft orvessel or, otherwise, from its location, transferred, sold, pledged,assigned or otherwise disposed of or permitted to become subject to asecurity interest or lien until further order of the court. Unless thecourt otherwise directs, the restraining order does not prohibit adisposition of the chattel to the plaintiff. Disobedience of the ordermay be punished as a contempt of court.3. An order as provided in wise directs, the restraining order does not prohibit adisposition of the chattel to the plaintiff. Disobedience of the ordermay be punished as a contempt of court.3. An order as provided in paragraph one of this subdivision may begranted without notice only if, in addition to the other prerequisitesfor the granting of the order, the court finds that unless such order isgranted without notice it is probable the chattel will becomeunavailable for seizure by reason of being transferred, concealed,disposed of, or removed from the state, or will become substantiallyimpaired in value.4. An order of seizure granted without notice shall provide that theplaintiff shall move for an order confirming the order of seizure onsuch notice to the defendant and sheriff and within such period, not toexceed five days after seizure, as the court shall direct. Unless themotion is made within such period, the order of seizure shall have nofurther effect and shall be vacated on motion and any chattel seizedthereunder shall be returned forthwith to the defendant. Upon the motionto confirm, the plaintiff shall have the burden of establishing thegrounds for confirmation.(e) Undertaking. The undertaking shall be executed --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only by sufficientsurety, acceptable to the court. The condition of the undertaking shallbe that the surety is bound in a specified amount, not less than twicethe value of the chattel stated in the plaintiff's affidavit, for thereturn of the chattel to any person to whom possession is awarded by thejudgment, and for payment of any sum awarded by the judgment against theperson giving the undertaking. A person claiming only a lien on orsecurity interest in the chattel may except to the plaintiff's surety.(f) Disposition of chattel by sheriff. Unless the court ordersotherwise, the sheriff shal rson claiming only a lien on orsecurity interest in the chattel may except to the plaintiff's surety.(f) Disposition of chattel by sheriff. Unless the court ordersotherwise, the sheriff shall retain custody of a chattel for a period often days after seizure where seizure is pursuant to an order granted onnotice, and until served with an order of confirmation where seizure ispursuant to an order granted without notice. At the expiration of suchperiod, the sheriff shall deliver the chattel to the plaintiff if therehas not been served upon him a notice of exception to plaintiff'ssurety, a notice of motion for an impounding or returning order, or thenecessary papers to reclaim the chattel. Upon failure of the surety onplaintiff's undertaking to justify, the sheriff shall deliver possessionof the chattel to the person from whom it was seized. CPLR § 7102 Page 2