Prejudgment Asset Restraining Measures

The procedural steps for securing a restraining order are meticulously outlined in the CPLR to ensure the court has a clear, legally sufficient basis for granting this extraordinary relief that restricts a defendant's property rights. The plaintiff must proactively engage in the following stages:

• The motion must robustly establish the validity of the core claim and demonstrate the immediate urgency for the restraint, proving that delay would be prejudicial.
• The applicant must provide a verified complaint, compelling evidence of a high likelihood of success on the merits, and precise, specific identification of the property to be restrained.
• The court will thoroughly review the entire application, and if granted, the formal enforcement is carried out by a sheriff or a designated enforcement officer.
• The entire legal process is rigidly governed by CPLR Article 62 to uphold constitutional due process while ensuring the swift protection of assets.

To proceed with the application for attachment, the plaintiff is statutorily required to post an undertaking or bond, which acts as a crucial financial safeguard for the defendant’s rights and financial integrity. This bond serves to legally indemnify the defendant for any financial damages caused by an improper, wrongful, or eventually vacated attachment, should the plaintiff ultimately lose the case.

• The specific amount of the undertaking is determined and set by the court, but it must be calculated to be "sufficient to cover potential damages," as explicitly mandated under CPLR §6212(b).
• This requirement reflects New York’s comprehensive policy of balancing the necessary need for creditor protection with the prevention of arbitrary or abusive use of powerful provisional remedies that can severely disrupt a defendant's business.

The court must be fully convinced that the plaintiff possesses a truly meritorious claim that is highly likely to succeed at trial, which requires proof that goes far beyond simple, generalized allegations. The application must effectively persuade the court of the case's strength.

• The applicant must submit compelling, admissible evidence and detailed legal arguments demonstrating a high probability of success, supported by comprehensive factual affirmations.
• This rigorous standard aligns perfectly with CPLR §6201(1), which strictly limits the grounds for attachment to claims based primarily on a monetary contract, a liquidated debt, or certain enumerated torts, thereby ensuring the remedy is not inappropriately used for speculative disputes.
• Failure to establish a prima facie case will result in the denial of the attachment regardless of the risk of asset dissipation.

Courts will not grant attachment merely because money is owed; a specific, credible risk that the defendant will actively remove, hide, or transfer property with the explicit intent to evade future judgment enforcement must be conclusively demonstrated. This element is highly critical and intensely scrutinized by the courts.

• CPLR §6201(3) directly addresses this by requiring a clear showing that the defendant, acting "with intent to defraud," is likely to frustrate eventual judgment enforcement through such deliberate acts.
• The plaintiff must provide specific, verifiable facts and circumstantial evidence suggesting this fraudulent intent, as generalized fears or mere financial instability are insufficient to overcome this challenging hurdle.

These two remedies are both provisional tools used to protect the plaintiff during litigation, but their differences determine which is appropriate for a given legal dispute concerning either monetary claims or actions demanding specific performance.

Attachment is strictly a monetary remedy used when a plaintiff seeks a financial award and fears the debtor will dispose of assets. A Preliminary Injunction is non-monetary, used to restrain specific actions that would cause irreparable harm during litigation.