New York Prejudgment Asset Restraining Measures

The first step in obtaining a prejudgment restraint is filing a motion in the Supreme Court or appropriate jurisdiction. The motion must include:

• A verified complaint or affidavit establishing the factual basis of the claim.
• Evidence demonstrating a valid cause of action and a likelihood of success on the merits.
• Specific identification of the property to be restrained or attached.
• A showing that the defendant may conceal, remove, or dispose of the property in question.

The legal basis for such action is found in CPLR §6201, which outlines the permissible grounds for attachment, including intent to defraud creditors or frustration of judgment enforcement.

To proceed with the application, the plaintiff must post an undertaking or bond. This bond serves to indemnify the defendant for any damages caused by a wrongful attachment. The amount is determined by the court and must be “sufficient to cover potential damages,” as required under CPLR §6212(b).

This requirement reflects New York’s balance between creditor protection and prevention of abuse of provisional remedies.

Once the application is filed and the bond is posted, the court will assess the motion. A judge may grant the request ex parte if there is an urgent need or risk of asset dissipation. Otherwise, the court will schedule a hearing.

If granted, a sheriff or enforcement officer will serve the attachment or injunction, restraining the defendant from transferring or encumbering the targeted assets.

After approval, enforcement typically involves physical seizure of property (in the case of tangible goods) or delivery of a restraining notice (for bank accounts or receivables). These are carried out in accordance with CPLR §§6214–6216.

The order remains in effect throughout the litigation unless vacated or modified by the court.

The court must be convinced that the plaintiff has a meritorious claim. A simple allegation is insufficient. Instead, the applicant must submit evidence demonstrating probable success, supported by detailed facts.

This standard aligns with CPLR §6201(1), which requires that the claim be based on a contract or a valid debt.

Courts will not grant attachment merely because money is owed. There must be a specific risk that the defendant will remove, hide, or transfer property to evade future enforcement.

CPLR §6201(3) addresses this by requiring a showing that the defendant "with intent to defraud" is likely to frustrate judgment enforcement through such acts.

Even if the other standards are met, the court will not approve attachment without the applicant providing a bond. This protects the defendant from harm if the attachment is later found improper.

The amount and form of the bond are determined by judicial discretion, and courts may increase or reduce the amount based on the property’s value and the strength of the plaintiff's case.

• Attachment is a monetary remedy. It applies when a plaintiff seeks to secure a money judgment and fears that the defendant will make enforcement difficult.
• Preliminary Injunction is non-monetary. It restrains the defendant from taking or failing to take certain actions that would cause irreparable harm during litigation.

Both remedies serve preventive functions but are used in different legal contexts depending on the relief sought.