New York Forfeiture Statute, Sections 1310-1352 of the New York Civil Practice Law and Rules

First Published 04/18/02; Last Update: 04/18/02 -09:50

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  1. Section 1310. Definitions
  2. Section 1311. Forfeiture actions
  3. Section 1311-a. Subpoena duces tecum
  4. Section 1312. Provisional remedies; generally
  5. Section 1313. Debt or property subject to attachment; proper garnishee
  6. Section 1314. Attaching creditor's rights in personal property
  7. Section 1315. Discharge of garnishee's obligation
  8. Section 1316. Order of attachment on notice; temporary restraining order; contents
  9. Section 1317. Order of attachment without notice
  10. Section 1318. Motion papers; filing; demand; damages
  11. Section 1319. Service of summons
  12. Section 1320. Levy upon personal property by service of order
  13. Section 1321. Levy upon personal property by seizure
  14. Section 1322. Levy upon real property
  15. Section 1323. Additional undertaking to carrier garnishee
  16. Section 1324. Claiming agent's duties after levy
  17. Section 1325. Garnishee's statement
  18. Section 1326. Disclosure
  19. Section 1327. Proceedings to determine adverse claims
  20. Section 1328. Discharge of attachment
  21. Section 1329. Vacating or modifying attachment
  22. Section 1330. Annulment of attachment
  23. Section 1331. Return of property; directions to clerk and claiming agent
  24. Section 1332. Disposition of attachment property after execution issued; priority of orders of attachment
  25. Section 1333. Grounds for preliminary injunction and temporary restraining order
  26. Section 1334. Motion papers
  27. Section 1335. Temporary restraining order
  28. Section 1336. Vacating or modifying preliminary injunction or temporary restraining order
  29. Section 1337. Ascertaining damages sustained by reason of preliminary injunction or temporary restraining order
  30. Section 1338. Appointment and powers of temporary receiver
  31. Section 1339. Oath
  32. Section 1340. Undertaking
  33. Section 1341. Accounts
  34. Section 1342. Removal
  35. Section 1343/ Notice of pendency; constructive notice
  36. Section 1344/ Filing, content and indexing of notice of pendency
  37. Section 1345. Service of summons
  38. Section 1346. Duration of notice of pendency
  39. Section 1347. Motion for cancellation of notice of pendency
  40. Section 1348. Undertaking for cancellation of notice of pendency
  41. Section 1349. Disposal of property
  42. Section 1350. Rules of procedure; in general
  43. Section 1351. Application of article
  44. Section 1352. Preservation of other rights and remedies

NY CPLR 1310-1352, PROCEEDS OF A CRIME: FORFEITURE

Section 1310. Definitions

In this article:

1. "Property" means and includes: real property, personal property, money, negotiable instruments, securities, or any thing of value or any interest in a thing of value.

2. "Proceeds of a crime" means any property obtained through the commission of a felony crime defined in subdivisions five and six hereof, and includes any appreciation in value of such property.

3. "Substituted proceeds of a crime" means any property obtained by the sale or exchange of proceeds of a crime, and any gain realized by such sale or exchange.

4. "Instrumentality of a crime" means any property, other than real property and any buildings, fixtures, appurtenances, and improvements thereon, whose use contributes directly and materially to the commission of a crime defined in subdivisions five and six hereof.

4-a. "Real property instrumentality of a crime" means an interest in real property the use of which contributes directly and materially to the commission of a specified felony offense.

4-b. "Specified felony offense" means:

(a) a conviction of a person for a violation of section 220.18, 220.21, 220.41, or 220.43 of the penal law, or where the accusatory instrument charges one or more of such offenses, conviction upon a plea of guilty to any of the felonies for which such plea is otherwise authorized by law or a conviction of a person for conspiracy to commit a violation of section 220.18, 220.21, 220.41, or 220.43 of the penal law, where the controlled substances which are the object of the conspiracy are located in the real property which is the subject of the forfeiture action; or

(b) on three or more occasions, engaging in conduct constituting a violation of any of the felonies defined in section 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43 or 221.55 of the penal law, which violations do not constitute a single criminal offense as defined in subdivision one of section 40.10 of the criminal procedure law, or a single criminal transaction, as defined in paragraph (a) of subdivision two of section 40.10 of the criminal procedure law, and at least one of which resulted in a conviction of such offense, or where the accusatory instrument charges one or more of such felonies, conviction upon a plea of guilty to a felony for which such plea is otherwise authorized by law; or

(c) a conviction of a person for a violation of section 220.09, 220.16, 220.34 or 220.39 of the penal law, or a conviction of a criminal defendant for a violation of section 221.30 of the penal law, or where the accusatory instrument charges any such felony, conviction upon a plea of guilty to a felony for which the plea is otherwise authorized by law, together with evidence which: (i) provides substantial indicia that the defendant used the real property to engage in a continual, ongoing course of conduct involving the unlawful mixing, compounding, manufacturing, warehousing, or packaging of controlled substances or where the conviction is for a violation of section 221.30 of the penal law, marijuana, as part of an illegal trade or business for gain; and (ii) establishes, where the conviction is for possession of a controlled substance or where the conviction is for a violation of section 221.30 of the penal law, marijuana, that such possession was with the intent to sell it.

5. "Post-conviction forfeiture crime" means any felony defined in the penal law or any other chapter of the consolidated laws of the state.

6. "Pre-conviction forfeiture crime" means only a felony defined in article two hundred twenty or section 221.30 or 221.55 of the penal law.

7. "Court" means a superior court.

8. "Defendant" means a person against whom a forfeiture action is commenced and includes a "criminal defendant" and a "non-criminal defendant".

9. "Criminal defendant" means a person who has criminal liability for a crime defined in subdivisions five and six hereof. For purposes of this article, a person has criminal liability when (a) he has been convicted of a post-conviction forfeiture crime, or (b) the claiming authority proves by clear and convincing evidence that such person has committed an act in violation of article two hundred twenty or section 221.30 or 221.55 of the penal law.

10. "Non-criminal defendant" means a person, other than a criminal defendant, who possesses an interest in the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime.

11. "Claiming authority" means the district attorney having jurisdiction over the offense or the attorney general for purpose of those crimes for which the attorney general has criminal jurisdiction in a case where the underlying criminal charge has been, is being or is about to be brought by the attorney general, or the appropriate corporation counsel or county attorney, provided that the corporation counsel or county attorney may act as a claiming authority only with the consent of the district attorney or the attorney general, as appropriate.

12. "Claiming agent" means and shall include all persons described in subdivision thirty-four of section 1.20 of the criminal procedure law, and sheriffs, undersheriffs and deputy sheriffs of counties within the city of New York.

13. "Fair consideration" means fair consideration is given for property, or obligation, (a) when in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied, or (b) when such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property, or obligation obtained.

14. "District attorney" means and shall include all persons described in subdivision thirty-two of section 1.20 of the criminal procedure law and the special assistant district attorney in charge of the office of prosecution, special narcotics courts of the city of New York.

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  • Section 1311. Forfeiture actions

    Section 1311. Forfeiture actions

    1. A civil action may be commenced by the appropriate claiming authority against a criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime or the real property instrumentality of a crime or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime, or the real property instrumentality of a crime. A civil action may be commenced against a non-criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime, or the real property instrumentality of a crime provided, however, that a judgment of forfeiture predicated upon clause (A) of subparagraph (iv) of paragraph (b) of subdivision three hereof shall be limited to the amount of the proceeds of the crime. Any action under this article must be commenced within five years of the commission of the crime and shall be civil, remedial, and in personam in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. Except as otherwise specially provided by statute, the proceedings under this article shall be governed by this chapter. An action under this article is not a criminal proceeding and may not be deemed to be a previous prosecution under article forty of the criminal procedure law.

    (a) Actions relating to post-conviction forfeiture crimes. An action relating to a post-conviction forfeiture crime must be grounded upon a conviction of a felony defined in subdivision five of section one thousand three hundred ten of this article, or upon criminal activity arising from a common scheme or plan of which such a conviction is a part, or upon a count of an indictment or information alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of such count. A court may not grant forfeiture until such conviction has occurred. However, an action may be commenced, and a court may grant a provisional remedy provided under this article, prior to such conviction having occurred. An action under this paragraph must be dismissed at any time after sixty days of the commencement of the action unless the conviction upon which the action is grounded has occurred, or an indictment or information upon which the asserted conviction is to be based is pending in a superior court. An action under this paragraph shall be stayed during the pendency of a criminal action which is related to it; provided, however, that such stay shall not prevent the granting or continuance of any provisional remedy provided under this article or any other provisions of law.

    (b) Actions relating to pre-conviction forfeiture crimes. An action relating to a pre-conviction forfeiture crime need not be grounded upon conviction of a pre-conviction forfeiture crime, provided, however, that if the action is not grounded upon such a conviction, it shall be necessary in the action for the claiming authority to prove the commission of a pre-conviction forfeiture crime by clear and convincing evidence. An action under this paragraph shall be stayed during the pendency of a criminal action which is related to it; provided, that upon motion of a defendant in the forfeiture action or the claiming authority, a court may, in the interest of justice and for good cause, and with the consent of all parties, order that the forfeiture action proceed despite the pending criminal action; and provided that such stay shall not prevent the granting or continuance of any provisional remedy provided under this article or any other provision of law.

    2. All defendants in a forfeiture action brought pursuant to this article shall have the right to trial by jury on any issue of fact.

    3. In a forfeiture action pursuant to this acticle the following burdens of proof shall apply:

    (a) In a forfeiture action commenced by a claiming authority against a criminal defendant, except for those facts referred to in paragraph (b) of subdivision nine of section one thousand three hundred ten and paragraph (b) of subdivision one of this section which must be proven by clear and convincing evidence, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture.

    (b) In a forfeiture action commenced by a claiming authority against a non-criminal defendant:

    (i) in an action relating to a pre-conviction forfeiture crime, the burden shall be upon the claiming authority to prove by clear and convincing evidence the commission of the crime by a person, provided, however, that it shall not be necessary to prove the identity of such person.

    (ii) if the action relates to the proceeds of a crime, except as provided in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew or should have known that the proceeds were obtained through the commission of a crime, or (B) fraudulently obtained his or her interest in the proceeds to avoid forfeiture.

    (iii) if the action relates to the substituted proceeds of a crime, except as provided in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew that the property sold or exchanged to obtain an interest in the substituted proceeds was obtained through the commission of a crime, or (B) fraudulently obtained his or her interest in the substituted proceeds to avoid forfeiture.

    (iv) if the action relates to an instrumentality of a crime, except as provided for in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew that the instrumentality was or would be used in the commission of a crime or (B) knowingly obtained his or her interest in the instrumentality to avoid forfeiture.

    (v) if the action relates to a real property instrumentality of a crime, the burden shall be upon the claiming authority to prove those facts referred to in subdivision four-b of section thirteen hundred ten of this article by clear and convincing evidence. The claiming authority shall also prove by a clear and convincing evidence that the non-criminal defendant knew that such property was or would be used for the commission of specified felony offenses, and either (A) knowingly and unlawfully benefitted from such conduct or (B) voluntarily agreed to the use of such property for the commission of such offenses by consent freely given. For purposes of this subparagraph, a non-criminal defendant knowingly and unlawfully benefits from the commission of a specified felony offense when he derives in exchange for permitting the use or occupancy of such real property by a person or persons committing such specified offense a substantial benefit that would otherwise not accrue as a result of the lawful use or occupancy of such real property. "Benefit" means benefit as defined in subdivision seventeen of section 10.00 of the penal law.

    (c) In a forfeiture action commenced by a claiming authority against a non-criminal defendant the following rebuttable presumptions shall apply:

    (i) a non-criminal defendant who did not pay fair consideration for the proceeds of a crime, the substituted proceeds of a crime or the instrumentality of a crime shall be presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

    (ii) a non-criminal defendant who obtains an interest in the proceeds of a crime, substituted proceeds of a crime or an instrumentality of a crime with knowledge of an order of provisional remedy relating to said property issued pursuant to this article, shall be presumed to know that such property was the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime.

    (iii) in an action relating to a post-conviction forfeiture crime, a non-criminal defendant who the claiming authority proves by clear and convincing evidence has criminal liability under section 20.00 of the penal law for the crime of conviction or for criminal activity arising from a common scheme or plan of which such crime is a part and who possesses an interest in the proceeds, the substituted proceeds, or an instrumentality of such criminal activity is presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

    (iv) a non-criminal defendant who participated in or was aware of a scheme to conceal or disguise the manner in which said non-criminal obtained his or her interest in the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime is presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

    (d) In a forfeiture action commenced by a claiming authority against a defendant, the following rebuttable presumption shall apply: all currency or negotiable instruments payable to the bearer shall be presumed to be the proceeds of a pre-conviction forfeiture crime when such currency or negotiable instruments are (i) found in close proximity to a controlled substance unlawfully possessed by the defendant in an amount sufficient to constitute a violation of section 220.18 or 220.21 of the penal law, or (ii) found in close proximity to any quantity of a controlled substance or marihuana unlawfully possessed by such defendant in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, distribute, package or otherwise prepare for sale such controlled substance or marihuana.

    (e) The presumption set forth pursuant to paragraph (d) of this subdivision shall be rebutted by credible and reliable evidence which tends to show that such currency or negotiable instrument payable to the bearer is not the proceeds of a preconviction forfeiture crime. In an action tried before a jury, the jury shall be so instructed. Any sworn testimony of a defendant offered to rebut the presumption and any other evidence which is obtained as a result of such testimony, shall be inadmissible in any subsequent proceeding relating to the forfeiture action, or in any other civil or criminal action, except in a prosecution for a violation of article two hundred ten of the penal law. In an action tried before a jury, at the commencement of the trial, or at such other time as the court reasonably directs, the claiming authority shall provide notice to the court and to the defendant of its intent to request that the court charge such presumption.

    3-a. Conviction of a person in a criminal action upon an accusatory instrument which includes one or more of the felonies specified in subdivision four-b of section thirteen hundred ten of this article, of any felony other than such felonies, shall not preclude a defendant, in any subsequent proceeding under this article where that conviction is at issue, from adducing evidence that the conduct underlying the conviction would not establish the elements of any of the felonies specified in such subdivision other than the one to which the criminal defendant pled guilty. If the defendant does adduce such evidence, the burden shall be upon the claiming authority to prove, by clear and convincing evidence, that the conduct underlying the criminal conviction would establish the elements of the felony specified in such subdivision. Nothing contained in this subdivision shall affect the validity of a settlement of any forfeiture action negotiated between the claiming authority and a criminal defendant contemporaneously with the taking of a plea of guilty in a criminal action to any felony defined in article two hundred twenty or section 221.30 or 221.55 of the penal law, or to a felony conspiracy to commit the same.

    4. The court in which a forfeiture action is pending may dismiss said action in the interests of justice upon its own motion or upon an application as provided for herein.

    (a) At any time during the pendency of a forfeiture action, the claiming authority who instituted the action, or a defendant may (i) apply for an order dismissing the complaint and terminating the forfeiture action in the interest of justice, or (ii) may apply for an order limiting the forfeiture to an amount equivalent in value to the value of property constituting the proceeds or substituted proceeds of a crime in the interest of justice.

    (b) Such application for the relief provided in paragraph (a) hereof must be made in writing and upon notice to all parties. The court may, in its discretion, direct that notice be given to any other person having an interest in the property.

    (c) An application for the relief provided for in paragraph (a) hereof must be brought exclusively in the superior court in which the forfeiture action is pending.

    (d) The court may grant the relief provided in paragraph (a) hereof if it finds that such relief is warranted by the existence of some compelling factor, consideration or circumstance demonstrating that forfeiture of the property or any part thereof, would not serve the ends of justice. Among the factors, considerations and circumstances the court may consider, among others, are:

    (i) the seriousness and circumstances of the crime to which the property is connected relative to the impact of forfeiture of property upon the person who committed the crime; or

    (ii) the adverse impact of a forfeiture of property upon innocent persons; or

    (iii) the appropriateness of a judgment of forfeiture in an action relating to pre-conviction forfeiture crime where the criminal proceeding based on the crime to which the property is allegedly connected results in an acquittal of the criminal defendant or a dismissal of the accusatory instrument on the merits; or

    (iv) in the case of an action relating to an instrumentality, whether the value of the instrumentality substantially exceeds the value of the property constituting the proceeds or substituted proceeds of a crime.

    (e) The court must issue a written decision stating the basis for an order issued pursuant to this subdivision.

    4-a. (a) The court in which a forfeiture action relating to real property is pending may, upon its own motion or upon the motion of the claiming authority which instituted the action, the defendant, or any other person who has a lawful property interest in such property, enter an order:

    (i) appointing an administrator pursuant to section seven hundred seventy-eight of the real property actions and proceedings law when the owner of a dwelling is a defendant in such action, and when persons who are not defendants in such action lawfully occupy one or more units within such dwelling, in order to maintain and preserve the property on behalf of such persons or any other person or entity who has a lawful property interest in such property, or in order to remedy any other condition which is dangerous to life, health or safety; or

    (ii) otherwise limiting, modifying or dismissing the forfeiture action in order to preserve or protect the lawful property interest of any non-criminal defendant or any other person who is not a criminal defendant, or the lawful property interest of a defendant which is not subject to forfeiture; or

    (iii) where such action involves interest in a residential leasehold or a statutory tenancy, directing that upon entry of a judgment of forfeiture, the lease or statutory tenancy will be modified as a matter of law to terminate only the interest of the defendant or defendants, and to continue the occupancy or tenancy of any other person or persons who lawfully reside in such demised premises, with such rights as such parties would otherwise have had if the defendant's interest had not been forfeited pursuant to this article.

    (b) For purposes of this subdivision the term "owner" has the same meaning as prescribed for that term in section seven hundred eighty-one of the real property actions and proceedings law and the term "dwelling" shall mean any building or structure or portion thereof which is principally occupied in whole or part as the home, residence or sleeping place of one or more human beings.

    5. An action for forfeiture shall be commenced by service pursuant to this chapter of a summons with notice or summons and verified complaint. No person shall forfeit any right, title, or interest in any property who is not a defendant in the action. The claiming authority shall also file a copy of such papers with the state division of criminal justice services; provided, however, failure to file such papers shall not be grounds for any relief by a defendant in this section.

    6. On the motion of any party to the forfeiture action, and for good cause shown, a court may seal any papers, including those pertaining to any provisional remedy, which relate to the forfeiture action until such time as the property which is the subject of the forfeiture action has been levied upon. A motion to seal such papers may be made ex parte and in camera.

    7. Remission. In addition to any other relief provided under this chapter, at any time within one year after the entry of a judgment of forfeiture, any person, claiming an interest in the property subject to forfeiture who did not receive actual notice of the forfeiture action may petition the judge before whom the forfeiture action was held for a remission or mitigation of the forfeiture and restoration of the property or the proceeds of any sale resulting from the forfeiture, or such part thereof, as may be claimed by him. The court may restore said property upon such terms and conditions as it deems reasonable and just if (i) the petitioner establishes that he or she was without actual knowledge of the forfeiture action or any related proceeding for a provisional remedy and did not know or should not have known that the forfeited property was connected to a crime or fraudulently conveyed and (ii) the court determines that restoration of the property would serve the ends of justice.

    8. The total amount that may be recovered by the claiming authority against all criminal defendants in a forfeiture action or actions involving the same crime shall not exceed the value of the proceeds of the crime or substituted proceeds of the crime, whichever amount is greater, and, in addition, the value of any forfeited instrumentality used in the crime. Any such recovery against criminal defendants for the value of the proceeds of the crime or substituted proceeds of the crime shall be reduced by an amount which equals the value of the same proceeds of the same crime or the same substituted proceeds of the same crime recovered against all non-criminal defendants. Any such recovery for the value of an instrumentality of a crime shall be reduced by an amount which equals the value of the same instrumentality recovered against any non-criminal defendant.

    The total amount that may be recovered against all non-criminal defendants in a forfeiture action or actions involving the same crime shall not exceed the value of the proceeds of the crime or the substituted proceeds of the crime, whichever amount is greater, and, in addition, the value of any forfeited instrumentality used in the crime. Any such recovery against non-criminal defendants for the value of the proceeds of the crime or substituted proceeds of the crime shall be reduced by an amount which equals the value of the proceeds of the crime or substituted proceeds of the crime recovered against all criminal defendants. A judgment against a non-criminal defendant pursuant to clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of this section shall be limited to the amount of the proceeds of the crime. Any recovery for the value of an instrumentality of the crime shall be reduced by an amount equal to the value of the same instrumentality recovered against any criminal defendant.

    9. Any defendant in a forfeiture action who knowingly and intentionally conceals, destroys, dissipates, alters, removes from the jurisdiction, or otherwise disposes of, property specified in a provisional remedy ordered by the court or in a judgment of forfeiture in knowing contempt of said order or judgment shall be subject to criminal liability and sanctions under sections 80.05 and 215.80 of the penal law.

    10. The proper venue for trial of an action for forfeiture is:

    (a) In the case of an action for post-conviction forfeiture commenced after conviction, the county where the conviction occurred.

    (b) In all other cases, the county where a criminal prosecution could be commenced under article twenty of the criminal procedure law, or, in the case of an action commenced by the office of prosecution, special narcotics courts of the city of New York, under section one hundred seventy-seven-b of the judiciary law.

    11. (a) Any stipulation or settlement agreement between the parties to a forfeiture action shall be filed with the clerk of the court in which the forfeiture action is pending. No stipulation or settlement agreement shall be accepted for filing unless it is accompanied by an affidavit from the claiming authority that written notice of the stipulation or settlement agreement, including the terms of such, has been given to the state crime victims board, the state division of criminal justice services, and in the case of a forfeiture based on a felony defined in article two hundred twenty or section 221.30 or 221.55 of the penal law, to the state division of substance abuse services.

    (b) No judgment or order of forfeiture shall be accepted for filing unless it is accompanied by an affidavit from the claiming authority that written notice of judgment or order, including the terms of such, has been given to the state crime victims board, the state division of criminal justice services, and in the case of a forfeiture based on a felony defined in article two hundred twenty or section 221.30 or 221.55 of the penal law, to the state division of substance abuse services.

    (c) Any claiming authority or claiming agent which receives any property pursuant to chapter thirteen of the food and drug laws (21 U.S.C. 801 et seq.) of the United States and/or chapter four of the customs duties laws (19 U.S.C. 1301 et seq.) of the United States and/or chapter 96 of the crimes and criminal procedure laws (18 U.S.C. 1961 et seq.) of the United States shall provide an affidavit to the commissioner of the division of criminal justice services stating the estimated present value of the property received.

    12. Property acquired in good faith by an attorney as payment for the reasonable and bona fide fees of legal services or reimbursement of reasonable and bona fide expenses related to the representation of a defendant in connection with a civil or criminal forfeiture proceeding or a related criminal matter, shall be exempt from a judgment of forfeiture. For purposes of this subdivision and subdivision four of section one thousand three hundred twelve of this article, "bona fide" means that the attorney who acquired such property had no reasonable basis to believe that the fee transaction was a fraudulent or sham transaction designed to shield property from forfeiture, hide its existence from governmental investigative agencies, or was conducted for any purpose other than for legitimate legal representation.

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  • Section 1311-a. Subpoena duces tecum

    Section 1311-a. Subpoena duces tecum

    1. At any time before an action pursuant to this article is commenced, the claiming authority may, pursuant to the provisions of subdivision two of this section, apply without notice for the issuance of a subpoena duces tecum.

    2. An application for a subpoena duces tecum pursuant to this section:

    (a) shall be made in the judicial district in which the claiming authority may commence an action pursuant to this article, and shall be made in writing to a justice of the supreme court, or a judge of the county court; and

    (b) shall be supported by an affidavit, and such other written documentation as may be submitted which: (i) sets forth the identity of the claiming authority and certifies that the applicant is authorized to make the application on the claiming authority's behalf; (ii) demonstrates reasonable grounds to believe that the execution of the subpoena would be reasonably likely to lead to information about the nature and location of any debt or property against which a forfeiture judgment may be enforced; (iii) states whether any other such subpoena or provisional remedy has been previously sought or obtained with respect to the subject matter of the subpoena or the matter to which it relates; (iv) contains a factual statement which sets forth the basis for the issuance of the subpoena, including a particular description of the nature of the information sought to be obtained; (v) states whether the issuance of the subpoena is sought without notice to any interested party; and (vi) where the application seeks the issuance of the subpoena without notice to any interested party, contains a statement setting forth the factual basis for the claiming authority's belief that providing notice of the application for the issuance of the subpoena may result in any property being destroyed, removed from the jurisdiction of the court, or otherwise being unavailable for forfeiture or to satisfy a money judgment that may be entered in the forfeiture action, and may interfere with law enforcement investigations or judicial proceedings.

    3. An application made pursuant to this section may be granted, in the court's discretion, upon a determination that the application meets the requirements set forth in subdivision two of this section; provided, however, that no such subpoena may be issued or directed to an attorney with regard to privileged records or documents or attorney work-product relating to a client. When a subpoena has been issued pursuant to this section, the claiming authority shall have the right to possession of the subpoenaed material. The possession shall be for a period of time, and on such reasonable terms and conditions, as the court may direct. The reasonableness of such possession, time, terms and conditions shall be determined with consideration for, among other things, (a) the good cause shown by the party issuing the subpoena or in whose behalf the subpoena is issued, (b) the rights and legitimate needs of the person subpoenaed and (c) the feasibility and appropriateness of making copies of the subpoenaed material. Where the application seeks a subpoena to compel the production of an original record or document, the court in its discretion may order the production of a certified transcript or certified copy thereof.

    4. Upon a determination pursuant to subdivision three of this section that the subpoena should be granted, the court shall issue the subpoena, seal all papers relating thereto, and direct that the recipient shall not, except as otherwise ordered by the court, disclose the fact of issuance or the subject of the subpoena to any person or entity; provided, however, that the court may require that notice be given to any interested party prior to the issuance of the subpoena, or at any time thereafter, when: (a) an order granting a provisional remedy pursuant to this article with respect to the subject matter of the subpoena or the matter to which it relates has been served upon the defendant whose books and records are the subject matter of the subpoena, whether such books and records are in the possession of the defendant or a third party; or (b) the court determines that providing notice of the application (i) will not result in any property being destroyed, removed from the jurisdiction of the court, or otherwise being unavailable for forfeiture or to satisfy a money judgment that may be entered in the forfeiture action and (ii) will not interfere with law enforcement investigations or judicial proceedings. For purposes of this section, "interested party" means any person whom the court determines might have an interest in the property subject to the forfeiture action brought pursuant to this article.

    5. Notwithstanding the provisions of subdivision four of this section, where a subpoena duces tecum has been issued pursuant to this section without notice to any interested party, the claiming authority shall serve written notice of the fact and date of the issuance of the subpoena duces tecum, and of the fact that information was obtained thereby, upon any interested party not later than ninety days after the date of compliance with such subpoena, or upon commencement of a forfeiture action, whichever occurs first; provided, however, where the action has not been commenced and upon a showing of good cause, service of the notice required herein may be postponed by order of the court for a reasonable period of time. The court, upon the filing of a motion by any interested party served with such notice, may, in its discretion, make available to such party or the party's counsel for inspection such portions of the information obtained pursuant to the subpoena as the court directs.

    6. Nothing contained in this section shall be construed to diminish or impair any right of subpoena or discovery that may otherwise be provided for by law to the claiming authority or to a defendant in a forfeiture action.

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  • Section 1312. Provisional remedies; generally

    Section 1312. Provisional remedies; generally

    1. The provisional remedies of attachment, injunction, receivership and notice of pendency provided for herein, shall be available in all actions to recover property or for a money judgment under this article.

    2. On a motion for a provisional remedy, the claiming authority shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the claiming authority to elect between those remedies to which it would otherwise be entitled.

    3. A court may grant an application for a provisional remedy when it determines that: (a) there is a substantial probability that the claiming authority will prevail on the issue of forfeiture and that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the court, or otherwise be unavailable for forfeiture; (b) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate; and (c) in an action relating to real property, that entry of the requested order will not substantially diminish, impair, or terminate the lawful property interest in such real property of any person or persons other than the defendant or defendants.

    4. Upon motion of any party against whom a provisional remedy granted pursuant to this article is in effect, the court may issue an order modifying or vacating such provisional remedy if necessary to permit the moving party to obtain funds for the payment of reasonable living expenses, other costs or expenses related to the maintenance, operation, or preservation of property which is the subject of any such provisional remedy or reasonable and bona fide attorneys' fees and expenses for the representation of the defendant in the forfeiture proceeding or in a related criminal matter relating thereto, payment for which is not otherwise available from assets of the defendant which are not subject to such provisional remedy. Any such motion shall be supported by an affidavit establishing the unavailability of other assets of the moving party which are not the subject of such provisional remedy for payment of such expenses or fees.

    [end]

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  • Section 1313. Debt or property subject to attachment; proper garnishee

    Section 1313. Debt or property subject to attachment; proper garnishee

    Any debt or property against which a forfeiture judgment may be enforced as provided under this article is subject to attachment. The proper garnishee of any such property or debt is the person designated as a proper garnishee for purposes of enforcing money judgments in section five thousand two hundred one of this chapter. For the purpose of applying the provisions to attachment, references to a "judgment debtor" in section five thousand two hundred one and in subdivision (i) of section one hundred five of this chapter shall be construed to mean "defendant".

    [end]

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  • Section 1314. Attaching creditor's rights in personal property

    Section 1314. Attaching creditor's rights in personal property

    Where the claiming authority has delivered an order of attachment to a claiming agent, the claiming authority's rights in a debt owed to a defendant or in an interest of a defendant in personal property against which debt or property a judgment may be enforced, are superior to the extent of the amount of the attachment to the rights of any transferee of the debt or property, except:

    1. A transferee who acquired the debt or property before it was levied upon for fair consideration and without knowledge of the order of attachment; or

    2. A transferee who acquired the debt or property for fair consideration after it was levied upon without knowledge of the levy while it was not in the possession of the claiming agent.

    [end]

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  • Section 1315. Discharge of garnishee's obligation

    Section 1315. Discharge of garnishee's obligation

    A person who, pursuant to an order of attachment, pays or delivers to the claiming agent money or other personal property in which a defendant has or will have an interest, or so pays a debt he or she owes the defendant, is discharged from his or her obligation to the defendant to the extent of the payment or delivery.

    [end]

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  • Section 1316. Order of attachment on notice; temporary restraining order; contents

    Section 1316. Order of attachment on notice; temporary restraining order; contents

    Upon a motion on notice for an order of attachment, the court may, without notice to the defendant, grant a temporary restraining order prohibiting the transfer of assets by a garnishee as provided in subdivision two of section one thousand three hundred twenty of this article. The contents of the order of attachment granted pursuant to this section shall be as provided in subdivision one of section one thousand three hundred seventeen of this article.

    [end]

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  • Section 1317. Order of attachment without notice

    Section 1317. Order of attachment without notice

    1. When granted; contents. An order of attachment may be granted without notice, before or after service of summons and at any time prior to judgment. It shall specify the amount to be secured by the order of attachment including any interest, costs and any claiming agent's fees and expenses, be endorsed with the name and address of the claiming authority and shall be directed to a claiming agent in any county or in the city of New York where any property in which the defendant has an interest is located or where a garnishee may be served. The order shall direct the claiming agent to levy within his or her jurisdiction, at any time before final judgment, upon such property in which the defendant has an interest and upon such debts owing to the defendant as will satisfy the amount specified in the order of attachment.

    2. Confirmation of order. An order of attachment granted without notice shall provide that within a period not to exceed five days after levy, the claiming authority shall move, on such notice as the court shall direct to the defendant, the garnishee, if any, and the claiming agent, for an order confirming the order of attachment. If the claiming authority fails to make such motion within the required period, the order of attachment and levy thereunder shall have no further effect and shall be vacated upon motion. Upon the motion to confirm, the provisions of subdivision two of section one thousand three hundred twenty-nine of this article shall apply. An order of attachment granted without notice may provide that the claiming agent refrain from taking any property levied upon into his actual custody, pending further order of the court.

    [end]

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  • Section 1318. Motion papers; filing; demand; damages

    Section 1318. Motion papers; filing; demand; damages

    1. Affidavit; other papers. On a motion for an order of attachment, or for an order to confirm an order of attachment, the claiming authority shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action and showing grounds for relief as required by section one thousand three hundred twelve of this article.

    2. Filing. Within ten days after the granting of an order of attachment, the claiming authority shall file it and the affidavit and other papers upon which it was based and the summons and complaint or proposed complaint in the action. A court for good cause shown may extend the time for such filing upon application of the claiming authority. Unless the time for filing has been extended, the order shall be invalid if not so filed, except that a person upon whom it is served shall not be liable for acting upon it as if it were valid without knowledge of the invalidity.

    3. Demand for papers. At any time after property has been levied upon, the defendant may serve upon the claiming authority a written demand that the papers upon which the order of attachment was granted and the levy made be served upon him or her. As soon as practicable after service of the demand, the claiming authority shall cause the papers demanded to be served by mailing the same to the address specified in the demand. A demand under this subdivision shall not of itself constitute an appearance in the action.

    4. Damages. The claiming authority shall be liable to the defendant for all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the attachment if the defendant recovers judgment, or if it is finally decided that the claiming authority was not entitled to an attachment of the defendant's property. In order to establish the claiming authority's liability, the defendant must prove by a preponderance of the evidence that in obtaining the order of attachment the claiming authority acted without reasonable cause and not in good faith.

    [end]

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  • Section 1319. Service of summons

    Section 1319. Service of summons

    An order of attachment granted before service is made on the defendant against whom the attachment is granted is valid only if, within sixty days after the order is granted, a summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed, except that a person upon whom the order of attachment is served shall not be liable for acting upon it as if it were valid without knowledge of the invalidity. If the defendant dies within sixty days after the order is granted and before the summons is served upon him or her or publication is completed, the order is valid only if the summons is served upon his or her executor or administrator within sixty days after letters are issued. Upon such terms as may be just and upon good cause shown the court may extend the time, not exceeding sixty days, within which the summons must be served or publication commenced pursuant to this section, provided that the application for extension is made before the expiration of the time fixed.

    [end]

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  • Section 1320. Levy upon personal property by service of order

    Section 1320. Levy upon personal property by service of order

    1. Method of levy. The claiming agent shall levy upon any interest of the defendant in personal property, or upon any debt owed to the defendant, by serving a copy of the order of attachment upon the garnishee, or upon the defendant if property to be levied upon is in the defendant's possession or custody, in the same manner as a summons except that such service shall not be made by delivery of a copy to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule three hundred eighteen of this chapter.

    2. Effect of levy; prohibition of transfer. A levy by service of an order of attachment upon a person other than the defendant is effective only if, at the time of service, such person owes a debt to the defendant or such person is in the possession or custody of property in which such person knows or has reason to believe the defendant has an interest, or if the claiming authority has stated in a notice which shall be served with the order that a specified debt is owed by the person served to the defendant or that the defendant has an interest in specified property in the possession or custody of the person served. All property in which the defendant is known or believed to have an interest then in and thereafter coming into the possession or custody of such a person, including any specified in the notice, and all debts of such person, including any specified in the notice, then due and thereafter coming due to the defendant, shall be subject to the levy. Unless the court orders otherwise, the person served with the order shall forthwith transfer or deliver all such property, and pay all such debts upon maturity, up to the amount specified in order of attachment, to the claiming agent and execute any document necessary to effect the payment, transfer or delivery. After such payment, transfer or delivery, property coming into the possession or custody of the garnishee, or debt incurred by him or her, shall not be subject to the levy. Until such payment, transfer or delivery is made, or until the expiration of ninety days after the service of the order of attachment upon him or her, or of such further time as is provided by any subsequent order of the court served upon him or her, whichever event first occurs, the garnishee is prohibited to make or suffer any sale, assignment or transfer of, or any interference with any such property, or pay over or otherwise dispose of any such debt, to any person other than the claiming agent except upon direction of the claiming agent or pursuant to an order of the court. A garnishee, however, may collect or redeem an instrument received by him or her for such purpose and he or she may sell or transfer in good faith property held as collateral or otherwise pursuant to pledge thereof or at the direction of any person other than the defendant authorized to direct sale or transfer, provided that the proceeds in which the defendant has an interest be retained subject to the levy. A claiming authority who has specified personal property or debt to be levied upon in a notice served with an order of attachment shall be liable to the owner of the property or the person to whom the debt is owed, if other than the defendant, for any damages sustained by reason of the levy. In order to establish the claiming authority's liability, the owner of the property of the person to whom the debt is owed must prove by a preponderance of the evidence that, in causing the levy to occur, the claiming authority acted without reasonable cause and not in good faith.

    3. Seizure by claiming agent; notice of satisfaction. Where property or debts have been levied upon by service of an order of attachment, the claiming agent shall take into his or her actual custody all such property capable of delivery and shall collect and receive all such debts. When the claiming agent has taken into his or her actual custody property or debts having value sufficient to satisfy the amount specified in the order of attachment, the claiming agent shall notify the defendant and each person upon whom the order of attachment was served that the order of attachment has been fully executed.

    4. Proceeding to compel payment or delivery. Where property or debts have been levied upon by service of an order of attachment, the claiming authority may commence a special proceeding against the garnishee served with the order to compel the payment, delivery or transfer to the claiming agent of such property or debts, or to secure a judgment against the garnishee. Notice of petition shall also be served upon the parties to the action and the claiming agent. A garnishee may assert any defense or counterclaim which he or she may have asserted against the defendant. The court may permit any adverse claimant to intervene in the proceeding and may determine his or her rights in accordance with section one thousand three hundred twenty-seven of this article.

    5. Failure to proceed. At the expiration of ninety days after a levy is made by service of the order of attachment, or of such further time as the court, upon motion of the claiming authority on notice to the parties to the action, has provided, the levy shall be void except as to property or debts which the claiming agent has taken into his or her actual custody, collected or received or as to which a proceeding under subdivision four hereof has been commenced.

    [end]

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  • Section 1321. Levy upon personal property by seizure

    Section 1321. Levy upon personal property by seizure

    If the claiming authority shall so direct the collecting agent, as an alternative to the method prescribed by section one thousand three hundred twenty of this article, shall levy upon property capable of delivery by taking the property into his actual custody. In cases in which the collecting agent is a sheriff, the sheriff may require that the claiming authority furnish indemnity that is either satisfactory to the sheriff or is fixed by the court. The collecting agent shall within four days serve a copy of the order of attachment in the manner prescribed by subdivision one of section one thousand three hundred twenty of this article upon the person from whose possession or custody the property was taken.

    [end]

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  • Section 1322. Levy upon real property

    Section 1322. Levy upon real property

    The claiming agent shall levy upon any interest of the defendant in real property by filing with the clerk of the county in which the property is located a notice of attachment endorsed with the name and address of the claiming authority and stating the names of the parties to the action, the amount specified in the order of attachment and a description of the property levied upon. The clerk shall record and index the notice in the same books, in the same manner and with the same effect, as a notice of the pendency of an action.

    [end]

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  • Section 1323. Additional undertaking to carrier garnishee

    Section 1323. Additional undertaking to carrier garnishee

    A garnishee who is a common carrier may transport or deliver property actually loaded on a conveyance, notwithstanding the service upon him or her of an order of attachment, if it was loaded without reason to believe that an order of attachment affecting the property had been granted, unless the claiming authority gives an undertaking in an amount fixed by the court, that the claiming authority shall pay any such carrier all expenses and damages which may be incurred for unloading the property and for detention of the conveyance necessary for that purpose.

    [end]

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  • Section 1324. Claiming agent's duties after levy

    Section 1324. Claiming agent's duties after levy

    1. Retention of property. The claiming agent shall hold and safely keep all property or debts paid, delivered, transferred or assigned to him or her or taken into his or her custody to answer any judgment that may be obtained against the defendant in the action, unless otherwise directed by the court or the claiming authority, subject to the payment of the claiming agent's fees and expenses, if any. Any money shall be held for the benefit of the parties to the action in an interest-bearing trust account at a national or state bank or trust company. If the urgency of the case requires, the court may direct sale or other disposition of property, specifying the manner and terms thereof, with notice to the parties to the action and the garnishee who has possession of such property.

    2. Inventory. Within fifteen days after service of an order of attachment or forthwith after such order has been vacated or annulled, the claiming agent shall file an inventory of property seized, a description of real property levied upon, the names and addresses of all persons served with the order of attachment, and an estimate of the value of all property levied upon.

    [end]

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  • Section 1325. Garnishee's statement

    Section 1325. Garnishee's statement

    Within ten days after service upon a garnishee of an order of attachment, or within such shorter time as the court may direct, the garnishee shall serve upon the claiming agent a statement specifying all debts of the garnishee to the defendant, when the debts are due, all property in the possession or custody of the garnishee in which the defendant has an interest, and the amounts and value of the debts and property specified. If the garnishee has money belonging to, or is indebted to, the defendant in at least the amount of the attachment, he or she may limit his or her statement to that fact.

    [end]

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  • Section 1326. Disclosure

    Section 1326. Disclosure

    Upon motion of any interested person, at any time after the granting of an order of attachment and prior to final judgment in the action, upon such notice as the court may direct, the court may order disclosure by any person of information regarding any property in which the defendant has or may have interest, or any debts owed or which may be owed to the defendant.

    [end]

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  • Section 1327. Proceedings to determine adverse claims

    Section 1327. Proceedings to determine adverse claims

    Prior to the application of property or debt to the satisfaction of a judgment, any person, other than a party to the action, who has an interest in the property subject to forfeiture may commence a special proceeding against the claiming authority to determine the rights of adverse claimants to the property or debt, and in such proceeding shall serve a notice of petition upon the claiming agent and upon each party in the same manner as a notice of motion. The proceeding may be commenced in the county where the property was levied upon, or in the county where the order of attachment is filed. The court may vacate or discharge the attachment, void the levy, direct the disposition of the property or debt, direct that undertakings be provided or released, or direct that damages be awarded. Where there appear to be disputed questions of fact, the court shall order a separate trial, indicating the person who shall have possession of the property pending a decision and the undertaking, if any, which such person shall give. If the court determines that the adverse claim was fraudulent or made without any reasonable basis whatsoever, it may require the claimant to pay the claiming authority the reasonable expenses incurred in the proceeding, including reasonable attorney's fees, and any other damages suffered by reason of the claim. The commencement of the proceeding shall not of itself subject the adverse claimant to personal jurisdiction with respect to any matter other than the claim asserted in the proceeding.

    [end]

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  • Section 1328. Discharge of attachment

    Section 1328. Discharge of attachment

    1. A defendant whose property or debt has been levied upon may move, upon notice to the claiming authority and the claiming agent, for any order discharging the attachment as to all or part of the property or debt upon payment of the claiming agent's fees and expenses, if any. On such a motion, the defendant shall give an undertaking, in an amount equal to the value of the property or debt sought to be discharged, that the defendant will pay to the claiming authority the amount of any judgment which may be recovered in the action against him or her, not exceeding the amount of the undertaking. Making a motion or giving an undertaking under this section shall not of itself constitute an appearance in the action.

    2. When a motion to discharge is made in the case of property levied upon pursuant to a claimed violation of the tax law, the amount of the undertaking required shall be an amount equal to the lesser of:

    (a) The amount specified in subdivision one of this section; or

    (b) The aggregate amount of all unpaid tax and civil penalties for such violation.

    [end]

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  • Section 1329. Vacating or modifying attachment

    Section 1329. Vacating or modifying attachment

    1. Motion to vacate or modify. Prior to the application of property or debt to the satisfaction of a judgment, the defendant, the garnishee or any person having an interest in the property or debt may move, on notice to each party and the claiming agent, for an order vacating or modifying the order of attachment. Upon the motion, the court may give the claiming authority a reasonable opportunity to correct any defect. If, after the defendant has appeared in the action, the court determines that the attachment is unnecessary to the security of the claiming authority, it shall vacate the order of attachment. Such a motion shall not of itself constitute an appearance in the action.

    2. Burden of proof. Upon a motion to vacate or modify an order of attachment the claiming authority shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he or she will succeed on the merits.

    [end]

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  • Section 1330. Annulment of attachment

    Section 1330. Annulment of attachment

    An order of attachment is annulled when the action in which it was granted abates or is discontinued or a judgment entered therein in favor of the claiming authority is fully satisfied, or a judgment is entered therein in favor of the defendant. In the last specified case a stay of proceedings suspends the effect of the annulment, and a reversal or vacating of the judgment revives the order of attachment.

    [end]

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  • Section 1331. Return of property; directions to clerk and claiming agent

    Section 1331. Return of property; directions to clerk and claiming agent

    Upon motion of any interested person, on notice to the claiming agent and each party, the court may direct the clerk of any county to cancel a notice of attachment and may direct the claiming agent to dispose of, account for, assign, return or release any property or debt, or the proceeds thereof, or any undertaking, or to file additional inventories or returns, subject to the payment of the claiming agent's fees, and expenses, if any. The court shall direct that notice of the motion be given to the claiming authority and plaintiffs in other orders of attachment, if any, and to the judgment creditors of executions, if any, affecting any property or debt, or the proceeds thereof, sought to be returned or released.

    [end]

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  • Section 1332. Disposition of attachment property after execution issued; priority of orders of attachment

    Section 1332. Disposition of attachment property after execution issued; priority of orders of attachment

    Where an execution is issued upon a judgment entered against the defendant, the claiming agent's duty with respect to custody and disposition of property or debt levied upon pursuant to an order of attachment is the same as if he or she had levied upon it pursuant to the execution. The priority among two or more orders of attachment against the same defendant shall be in the order in which they were delivered to the officer who levied upon the property or debt. The priority between an order of attachment and an execution, or a payment, delivery or receivership order, is set forth in section five thousand two hundred thirty-four of this chapter.

    [end]

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  • Section 1333. Grounds for preliminary injunction and temporary restraining order

    Section 1333. Grounds for preliminary injunction and temporary restraining order

    A preliminary injunction may be granted in any action under this article, whether for money damages or otherwise, where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the claiming authority's rights respecting the subject of the action, and thereby tending to render a resulting judgment ineffectual. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. A preliminary injunction may be granted only upon notice to the defendant. Notice of the motion may be served with the summons or at any time thereafter and prior to judgment.

    [end]

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  • Section 1334. Motion papers

    Section 1334. Motion papers

    Affidavit; other papers. On a motion for a preliminary injunction the claiming authority shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action and showing grounds for relief as required by section one thousand three hundred twelve of this article.

    [end]

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  • Section 1335. Temporary restraining order

    Section 1335. Temporary restraining order

    1. Generally. If, on a motion for a preliminary injunction, the claiming authority shall show that immediate and irreparable injury, loss or damages may result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time.

    2. Service. Unless the court orders otherwise, a temporary restraining order together with the papers upon which it was based, and a notice of hearing for the preliminary injunction, shall be personally served in the same manner as a summons.

    [end]

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  • Section 1336. Vacating or modifying preliminary injunction or temporary restraining order

    Section 1336. Vacating or modifying preliminary injunction or temporary restraining order

    A defendant enjoined by a preliminary injunction may move at any time, on notice to the claiming authority, to vacate or modify it. On motion, without notice, made by a defendant enjoined by a temporary restraining order, the judge who granted it, or in his or her absence or disability, another judge, may vacate or modify the order. An order granted without notice and vacating or modifying a temporary restraining order shall be effective when, together with the papers upon which it is based, it is filed with the clerk and served upon the claiming authority. As a condition to granting an order vacating or modifying a preliminary injunction or a temporary restraining order, a court may require the defendant to give an undertaking, in an amount to be fixed by the court, that the defendant shall pay to the claiming authority any loss sustained by reason of the vacating or modifying order.

    [end]

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  • Section 1337. Ascertaining damages sustained by reason of preliminary injunction or temporary restraining order

    Section 1337. Ascertaining damages sustained by reason of preliminary injunction or temporary restraining order

    The damages sustained by reason of a preliminary injunction or temporary restraining order may be ascertained upon motion on such notice to all interested persons as the court shall direct. Where the defendant enjoined was an officer of a corporation or joint-stock association or a representative of another person, the damages sustained by such corporation, association or person represented, to the amount of such excess, may also be ascertained. The amount of damages so ascertained is conclusive upon all persons who were served with notice of the motion and such amount may be recovered by the person entitled thereto in a separate action. In order to establish the claiming authority's liability for damages, the person seeking such damages must prove by a preponderance of the evidence that, in causing the temporary restraining order or preliminary injunction to be granted, the claiming authority acted without reasonable cause and not in good faith.

    [end]

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  • Section 1338. Appointment and powers of temporary receiver

    Section 1338. Appointment and powers of temporary receiver

    1. Appointment of temporary receiver; joinder of moving party. Upon motion of the claiming authority on any other person having an apparent interest in property which is the subject of an action pursuant to this article, a temporary receiver of the property may be appointed, before or after service of summons and at any time prior to judgment, or during the pendency of an appeal, where there is danger that the property will be removed from the state, or lost, materially injured or destroyed. A motion made by a person not already a party to the action constitutes an appearance in the action and the person shall be joined as a party.

    2. Powers of temporary receiver. The court appointing a receiver may authorize him or her to take and hold real and personal property, and sue for, collect and sell debts or claims, upon such conditions and for such purposes as the court shall direct. A receiver shall have no power to employ counsel unless expressly so authorized by order of the court. Upon motion of the receiver or a party, powers granted to a temporary receiver may be extended or limited or the receivership may be extended to another action involving the property.

    3. Duration of temporary receivership. A temporary receivership shall not continue after final judgment unless otherwise directed by the court.

    [end]

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  • Section 1339. Oath

    Section 1339. Oath

    A temporary receiver, before entering upon his or her duties, shall be sworn faithfully and fairly to discharge the trust committed to him or her. The oath may be administered by any person authorized to take acknowledgments of deeds by the real property law. The oath may be waived upon consent of all parties.

    [end]

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  • Section 1340. Undertaking

    Section 1340. Undertaking

    A temporary receiver shall give an undertaking in an amount to be fixed by the court making the appointment, that he or she will faithfully discharge his or her duties.

    [end]

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  • Section 1341. Accounts

    Section 1341. Accounts

    A temporary receiver shall keep written accounts itemizing receipts and expenditures, and describing the property and naming the depository of receivership funds, which shall be open to inspection by any person having an apparent interest in the property, the court may require the keeping of particular records or direct or limit inspection or require presentation of a temporary receiver's accounts. Notice of a motion for the presentation of a temporary receiver's accounts shall be served upon the sureties on his or her undertaking as well as upon each party.

    [end]

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  • Section 1342. Removal

    Section 1342. Removal

    Upon motion of any party or upon its own initiative, the court which appointed a receiver may remove him or her at any time.

    [end]

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  • Section 1343. Notice of pendency; constructive notice

    Section 1343. Notice of pendency; constructive notice

    A notice of pendency may be filed in any action brought pursuant to this article in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. The pendency of such an action is constructive notice, from the time of filing of the notice only, to a purchaser from, or incumbrancer against, any defendant named in a notice of pendency indexed in a block index against a block in which property affected is situated or any defendant against whose name a notice of pendency is indexed. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as if he or she were a party.

    [end]

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  • Section 1344. Filing, content and indexing of notice of pendency

    Section 1344. Filing, content and indexing of notice of pendency

    1. Filing. In a case specified in section one thousand three hundred forty-three of this article the notice of pendency shall be filed in the office of the clerk of any county where property affected is situated, before or after service of a summons and at any time prior to judgment. Unless it has already been filed in that county, the complaint shall be filed with the notice of pendency.

    2. Content, designation of index. A notice of pendency shall state the names of the parties to the action, that the action is for forfeiture pursuant to this article and a description of the property affected. A notice of pendency filed with a clerk who maintains a block index shall contain a designation of the number of each block on the land map of a county which is affected by the notice. A notice of pendency filed with a clerk who does not maintain a block index shall contain a designation of the names of each defendant against whom the notice is directed to be indexed.

    3. Indexing. Each county clerk with whom a notice of pendency is filed shall immediately record and index it against the blocks or names designated. A county clerk who does not maintain a block index shall index a notice of pendency of an action for partition against the names of each claiming authority and each defendant not designated as wholly fictitious.

    [end]

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  • Section 1345. Service of summons

    Section 1345. Service of summons

    A notice of pendency filed before an action is commenced is effective only if, within thirty days after filing, a summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed. If the defendant dies within thirty days after filing and before the summons served upon him or her or publication is completed, the notice is effective only if the summons is served upon his or her executor or administrator within sixty days after letters are issued.

    [end]

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  • Section 1346. Duration of notice of pendency

    Section 1346. Duration of notice of pendency

    A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration of a period or extended period, the court, upon motion of the claiming authority and upon such notice as it may require, for good cause shown, may grant an extension for a like additional period. An extension order shall be filed, recorded and indexed before expiration of the prior period.

    [end]

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  • Section 1347. Motion for cancellation of notice of pendency

    Section 1347. Motion for cancellation of notice of pendency

    1. Mandatory cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section one thousand three hundred forty-five of this article; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the claiming authority has expired.

    2. Discretionary cancellation. The court, upon a motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the claiming authority has not commenced or prosecuted the action in good faith.

    3. Costs and expenses. The court, in an order canceling a notice of pendency under this section, may direct the claiming authority to pay any costs and expenses occasioned by the filing and cancellation, in addition to any costs of the action. In order to establish the claiming authority's liability for such costs and expenses, the person seeking such costs and expenses must prove by a preponderance of the evidence that, in causing the notice to pendency to be filed, the claiming authority acted without reasonable cause and not in good faith.

    4. Cancellation by stipulation. At any time prior to entry of judgment, a notice of pendency shall be cancelled by the county clerk without an order, on the filing with him or her of:

    (a) An affidavit by the claiming authority showing which defendants have been served with process, which defendants are in default in appearing or answering, and which defendants have appeared or answered and by whom; and

    (b) A stipulation consenting to the cancellation, signed by the claiming authority and by the attorneys for all the defendants who have appeared or answered including those who have waived all notices, and executed and acknowledged, in the form required to entitle a deed to be recorded, by the defendants who have been served with process and have not appeared but whose time to do so has not expired, and by any defendants who have appeared in person.

    5. Cancellation by a claiming authority. At any time prior to the entry of a judgment a notice of pendency of action shall be cancelled by the county clerk without an order on the filing with him or her of an affidavit by the claiming authority showing that there have been no appearances and that the time to appear has expired for all parties.

    [end]

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  • Section 1348. Undertaking for cancellation of notice of pendency

    Section 1348. Undertaking for cancellation of notice of pendency

    The court, upon motion of any person aggrieved and upon such notice of pendency as it may require, may direct any county clerk to cancel a notice of pendency, upon such terms as are just, whether or not the judgment demanded would affect specific real property, if the moving party shall give an undertaking in an amount to be fixed by the court, and if the court finds that adequate relief can be secured to the claiming authority by the giving of such an undertaking.

    [end]

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  • Section 1349. Disposal of property

    Section 1349. Disposal of property

    1. Any judgment or order of forfeiture issued pursuant to this article shall include provisions for the disposal of the property found to have been forfeited.

    2. If any other provision of law expressly governs the manner of disposition of property subject to the judgment or order of forfeiture, that provision of law shall be controlling. Upon application by a claiming agent for reimbursement of moneys directly expended by a claiming agent in the underlying criminal investigation for the purchase of contraband which were converted into a non-monetary form or which have not been otherwise recovered, the court shall direct such reimbursement from money forfeited pursuant to this article. Upon application of the claiming agent, the court may direct that any vehicles, vessels or aircraft forfeited pursuant to this article be retained by the claiming agent for law enforcement purposes, unless the court determines that such property is subject to a perfected lien, in which case the court may not direct that the property be retained unless all such liens on the property to be retained have been satisfied or pursuant to the court's order will be satisfied. In the absence of an application by the claiming agent, the claiming authority may apply to the court to retain such property for law enforcement purposes. Upon such application, the court may direct that such property be retained by the claiming authority for law enforcement purposes, unless the court determines that such property is subject to a perfected lien. If not so retained, the judgment or order shall direct the claiming authority to sell the property in accordance with article fifty-one of this chapter, and that the proceeds of such sale and any other moneys realized as a consequence of any forfeiture pursuant to this article shall be apportioned and paid in the following descending order of priority:

    (a) Amounts ordered to be paid by the court in satisfaction of any lien or claim against property forfeited. A fine imposed pursuant to the penal law shall not be deemed to constitute a lien or claim for purposes of this section;

    (b) Amounts ordered to be paid by the defendant in any other action or proceeding as restitution, reparations or damages to a victim of the crime, which crime constitutes the basis upon which forfeiture was effected under this article, to the extent such amounts remain unpaid;

    (c) Amounts ordered to be paid by the defendant in any other action or proceeding as restitution, reparations or damages to a victim of any crime committed by the defendant even though such crime did not constitute the basis for forfeiture under this article, to the extent that such amounts remain unpaid;

    (d) Amounts actually expended by a claiming authority or claiming agent, which amounts are substantiated by vouchers or other evidence, for the:

    (i) maintenance and operation of real property attached pursuant to this article. Expenditures authorized by this subparagraph are limited to mortgage, tax and other financial obligations imposed by law and those other payments necessary to provide essential services and repairs to real property whose occupants are innocent of the criminal conduct which led to the attachment or forfeiture; and

    (ii) proper storage, cleanup and disposal of hazardous substances or other materials, the disposal of which is governed by the environmental conservation law, when such storage, cleanup or disposal is required by circumstances attendant to either the commission of the crime or the forfeiture action, or any order entered pursuant thereto;

    (e) In addition to amounts, if any, distributed pursuant to paragraph (d) of this subdivision, fifteen percent of all moneys realized through forfeiture to the claiming authority in satisfaction of actual costs and expenses incurred in the investigation, preparation and litigation of the forfeiture action, including that proportion of the salaries of the attorneys, clerical and investigative personnel devoted thereto, plus all costs and disbursements taxable under the provisions of this chapter;

    (f) In addition to amounts, if any, distributed pursuant to paragraph (d) of this subdivision, five percent of all moneys realized through forfeiture to the claiming agent in satisfaction of actual costs incurred for protecting, maintaining and forfeiting the property including that proportion of the salaries of attorneys, clerical and investigative personnel devoted thereto;

    (g) Forty percent of all moneys realized through forfeiture which are remaining after distributions pursuant to paragraphs (a) through (f) of this subdivision, to the substance abuse service fund established pursuant to section ninety-seven-w of the state finance law;

    (h) All moneys remaining after distributions pursuant to paragraphs (a) through (g) of this subdivision shall be distributed as follows:

    (i) seventy-five percent of such moneys shall be deposited to a law enforcement purposes subaccount of the general fund of the state where the claiming agent is an agency of the state or the political subdivision or public authority of which the claiming agent is a part, to be used for law enforcement use in the investigation of penal law offenses;

    (ii) the remaining twenty-five percent of such moneys shall be deposited to a prosecution services subaccount of the general fund of the state where the claiming authority is the attorney general or the political subdivision of which the claiming authority is a part, to be used for the prosecution of penal law offenses.

    Where multiple claiming agents participated in the forfeiture action, funds available pursuant to subparagraph (i) of this paragraph shall be disbursed to the appropriate law enforcement purposes subaccounts in accordance with the terms of a written agreement reflecting the participation of each claiming agent entered into by the participating claiming agents.

    3. All moneys distributed to the claiming agent and the claiming authority pursuant to paragraph (h) of subdivision two of this section shall be used to enhance law enforcement efforts and not in supplantation of ordinary budgetary costs including salaries of personnel, and expenses of the claiming authority or claiming agent during the fiscal year in which this section takes effect.

    4. The claiming authority shall report the disposal of property and collection of assets pursuant to this section to the state crime victims board, the state division of criminal justice services and the state division of substance abuse services.

    [end]

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  • Section 1350. Rules of procedure; in general

    Section 1350. Rules of procedure; in general

    The civil practice law and rules shall govern the procedure in proceedings and actions commenced under this article, except where the procedure is regulated by any inconsistent provisions herein.

    [end]

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  • Section 1351. Application of article

    Section 1351. Application of article

    If any provision of this article or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined (i) in its operation of the provision, or (ii) in its application to the person or circumstance directly involved in the controversy in which such judgment shall have been rendered.

    [end]

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  • Section 1352. Preservation of other rights and remedies

    Section 1352. Preservation of other rights and remedies

    The remedies provided for in this article are not intended to substitute for or limit or supercede the lawful authority of any public officer or agency or other person to enforce any other right or remedy provided for by law.

    [end of Section 1352 and end of entire NY forfeiture statute]

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    Carl E. Person, Editor, LawMall, carlpers@lawmall.com
    For the c.v. (resume) of Attorney Carl E. Person, click on Carl Person C.V.

    Copyright 2002 by Carl E. Person - no copyright claimed on the text of the forfeiture statute

    Lawmall and RPAMall are servicemarks of Carl E. Person