New York Civil Practice
Law & Rules
NYCPLR Article 13-A
PROCEEDS OF A CRIME-FORFEITURE
Section 1310. Definitions.
1311. Forfeiture actions.
1311-a. Subpoena duces tecum.
1312. Provisional remedies; generally.
1313. Debt or property subject to attachment; proper
garnishee.
1314. Attaching creditor`s rights in personal property.
1315. Discharge of garnishee`s obligation.
1316. Order of attachment on notice; temporary restraining
order; contents.
1317. Order of attachment without notice.
1318. Motion papers; filing; demand; damages.
1319. Service of summons.
1320. Levy upon personal property by service of order.
1321. Levy upon personal property by seizure.
1322. Levy upon real property.
1323. Additional undertaking to carrier garnishee.
1324. Claiming agent`s duties after levy.
1325. Garnishee`s statement.
1326. Disclosure.
1327. Proceedings to determine adverse claims.
1328. Discharge of attachment.
1329. Vacating or modifying attachment.
1330. Annulment of attachment.
1331. Return of property; directions to clerk and claiming
agent.
1332. Disposition of attachment property after execution
issued; priority of orders of attachment.
1333. Grounds for preliminary injunction and temporary
restraining order.
1334. Motion papers.
1335. Temporary restraining order.
1336. Vacating or modifying preliminary injunction or tempo-
rary restraining order.
1337. Ascertaining damages sustained by reason of preliminary
injunction or temporary restraining order.
1338. Appointment and powers of temporary receiver.
1339. Oath.
1340. Undertaking.
1341. Accounts.
1342. Removal.
1343. Notice of pendency; constructive notice.
1344. Filing, content and indexing of notice of pendency.
1345. Service of summons.
1346. Duration of notice of pendency.
1347. Motion for cancellation of notice of pendency.
1348. Undertaking for cancellation of notice of pendency.
1349. Disposal of property.
1350. Rules of procedure; in general.
1351. Application of article.
1352. Preservation of other rights and remedies.
S 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.
S 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 article 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
paragaph (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 of 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. S801 et seq.) of the United States and/or chapter four of the
customs duties laws (19 U.S.C. S1301 et seq.) of the United States
and/or chapter 96 of the crimes and criminal procedure laws (18 U.S.C.
S1961 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.
S 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.
S 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.
S 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".
S 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.
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Article 13-A Continued . . .
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.