2023 New York Laws › CVP - Civil Practice Law and Rules › Article 71 - Recovery of Chattel › 7102 - 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.