2006 New York Code - Seizure Of Chattel On Behalf Of Plaintiff.



 
    §  7102.  Seizure  of  chattel  on behalf of plaintiff. (a) Seizure of
  chattel.  When the plaintiff delivers to a sheriff an order of  seizure,
  the papers on which the order was granted, the undertaking and a summons
  and  complaint  bearing the index number and the date of filing with the
  clerk of the court, in the action to recover the chattel, he shall seize
  the chattel in accordance with the provisions of the order  and  without
  delay.
    (b)  Service.  The  sheriff  shall  serve  upon  the person from whose
  possession the chattel is seized a copy of the  order  of  seizure,  the
  papers  on which the order was granted, and the undertaking delivered to
  him by the plaintiff. Unless the order of  seizure  provides  otherwise,
  the papers delivered to him by the plaintiff, shall be personally served
  by  the sheriff on each defendant not in default in the same manner as a
  summons or as provided in section 314; if a defendant  has  appeared  he
  shall be served in the manner provided for service of papers generally.
    (c)  Affidavit.  The  application  for  an  order  of seizure shall be
  supported by an affidavit which shall clearly identify the chattel to be
  seized and shall state:
    1. that the plaintiff is entitled to possession by virtue of facts set
  forth;
    2. that the chattel is wrongfully held by the defendant named;
    3. whether an action to recover the chattel has  been  commenced,  the
  defendants  served,  whether  they  are  in  default,  and, if they have
  appeared, where papers may be served upon them;
    4. the value of each chattel or class  of  chattels  claimed,  or  the
  aggregate value of all chattels claimed;
    5.  if  the plaintiff seeks the inclusion in the order of seizure of a
  provision authorizing the sheriff to break open, enter  and  search  for
  the chattel, the place where the chattel is located and facts sufficient
  to  establish  probable  cause to believe that the chattel is located at
  that place;
    6. that no defense to the claim is known to the plaintiff; and
    7. if the plaintiff seeks an order of seizure  without  notice,  facts
  sufficient  to  establish  that  unless  such  order  is granted without
  notice, it is probable the chattel will become unavailable  for  seizure
  by  reason of being transferred, concealed, disposed of, or removed from
  the state, or will become substantially impaired in value.
    (d) Order of seizure.  1.  Upon  presentation  of  the  affidavit  and
  undertaking  and  upon  finding  that  it is probable the plaintiff will
  succeed on the merits and the facts are as stated in the affidavit,  the
  court  may  grant an order directing the sheriff of any county where the
  chattel is found to seize the chattel described  in  the  affidavit  and
  including,  if the court so directs, a provision that, if the chattel is
  not delivered to the sheriff, he may break open, enter  and  search  for
  the chattel in the place specified in the affidavit. The plaintiff shall
  have the burden of establishing the grounds for the order.
    2. Upon a motion for an order of seizure, the court, without notice to
  the  defendant, may grant a temporary restraining order that the chattel
  shall not be removed from the state if it  is  a  vehicle,  aircraft  or
  vessel  or,  otherwise,  from  its location, transferred, sold, pledged,
  assigned or otherwise disposed of or permitted to become  subject  to  a
  security  interest  or lien until further order of the court. Unless the
  court otherwise directs, the  restraining  order  does  not  prohibit  a
  disposition  of  the chattel to the plaintiff. Disobedience of the order
  may be punished as a contempt of court.
    3. An order as provided in paragraph one of this  subdivision  may  be
  granted  without  notice only if, in addition to the other prerequisites
  for the granting of the order, the court finds that unless such order is
  granted  without  notice  it  is  probable  the  chattel   will   become
  unavailable  for  seizure  by  reason  of  being transferred, concealed,
  disposed of, or removed from the state,  or  will  become  substantially
  impaired in value.
    4.  An  order of seizure granted without notice shall provide that the
  plaintiff shall move for an order confirming the  order  of  seizure  on
  such  notice to the defendant and sheriff and within such period, not to
  exceed five days after seizure, as the court shall  direct.  Unless  the
  motion  is  made  within such period, the order of seizure shall have no
  further effect and shall be vacated on motion  and  any  chattel  seized
  thereunder shall be returned forthwith to the defendant. Upon the motion
  to  confirm,  the  plaintiff  shall  have the burden of establishing the
  grounds for confirmation.
    (e) Undertaking. The  undertaking  shall  be  executed  by  sufficient
  surety,  acceptable to the court. The condition of the undertaking shall
  be that the surety is bound in a specified amount, not less  than  twice
  the  value  of  the chattel stated in the plaintiff's affidavit, for the
  return of the chattel to any person to whom possession is awarded by the
  judgment, and for payment of any sum awarded by the judgment against the
  person giving the undertaking. A person  claiming  only  a  lien  on  or
  security interest in the chattel may except to the plaintiff's surety.
    (f)  Disposition  of  chattel  by  sheriff.  Unless  the  court orders
  otherwise, the sheriff shall retain custody of a chattel for a period of
  ten days after seizure where seizure is pursuant to an order granted  on
  notice,  and until served with an order of confirmation where seizure is
  pursuant to an order granted without notice. At the expiration  of  such
  period,  the sheriff shall deliver the chattel to the plaintiff if there
  has not been served upon  him  a  notice  of  exception  to  plaintiff's
  surety,  a notice of motion for an impounding or returning order, or the
  necessary papers to reclaim the chattel. Upon failure of the  surety  on
  plaintiff's undertaking to justify, the sheriff shall deliver possession
  of the chattel to the person from whom it was seized.


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