New York Civil Practice
Law & Rules



NYCPLR Article 71

RECOVERY OF CHATTEL

ARTICLE 71

7101. When action may be brought.
7102. Seizure of chattel on behalf of plaintiff.
(a) Seizure of chattel.
(b) Service.
(c) Affidavit.
(d) Order of seizure.
(e) Undertaking.
(f) Disposition of chattel by sheriff.
7103. Reclaiming, impounding or returning chattel.
(a) Reclaiming chattel.
(b) Impounding chattel.
(c) Returning chattel.
(d) Additional parties.
7104. Seizing, reclaiming or returning less than all chattels. 7105. Sale of perishable property.
7106. Payment of sheriff`s fees and expenses; liability of sheriff.
(a) Payment of sheriff`s fees and expenses.
(b) Liability of sheriff.
7107. Sheriff`s return.
7108. Judgment; execution in certain cases; enforcement by contempt.
(a) Generally.
(b) Where value of chattel should not be awarded; execution.
(c) Failure of jury to fix sum.
7109. Unique chattel.
(a) Injunction, temporary restraining order.
(b) Judgment enforceable by contempt.
7110. Sheriff`s powers.
7111. Action on undertaking.
7112. Testimony by deposition to ascertain location of chattel.

S 7101. When action may be brought. An action under this article may be brought to try the right to possession of a chattel.

S 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.

S 7103. Reclaiming, impounding or returning chattel. (a) Reclaiming chattel. A chattel may be reclaimed by any person claiming the right to its possession, except a defendant claiming only a lien thereon or a security interest therein , by service upon the sheriff, and upon all parties to the action, of a notice that the reclaiming party requires a return of all or part of the chattels replevied; an undertaking executed as required by subdivision (e) of section 7102 and an affidavit stating that the reclaiming party is entitled to possession by virtue of facts set forth. The sheriff shall retain custody of the chattel for ten days after such papers have been served upon him. At the expiration of such period he shall deliver the chattel to the person serving the notice if there has not been served upon him a notice of exception to sureties or a notice of motion for an impounding order. Upon failure by the surety to justify, the sheriff shall deliver possession of the chattel to the plaintiff. If more than one person serves a reclaiming notice on the sheriff, the sheriff shall move, on notice to all parties, to have the court determine to whom the chattel shall be delivered.
(b) Impounding chattel. A chattel which is in the custody of the sheriff may be impounded pending judgment or further order of the court, upon motion of any person claiming the right to its possession, upon notice to the sheriff and to all parties to the action. The motion shall be granted if the chattel is of such a nature, or the circumstances are such, that the moving party, if found to be entitled to possession, would not be adequately compensated for its loss by the payment of its pecuniary value. An undertaking shall accompany the motion, in an amount not less than two hundred and fifty dollars, that the moving party will indemnify the sheriff for all expenses incurred by him in transporting, handling and safekeeping the chattel pending determination of the motion, and, if the motion is granted, pending judgment or further order of the court. All expenses resulting from impounding shall be taxed as disbursements in the action as the court may direct.

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Article 71, Continued . . .


(c) Returning chattel. 1. If a chattel which is in the custody of the sheriff is personal property which if owned by a defendant would be exempt from application to the satisfaction of a money judgment, if the value of the possession of the chattel to the defendant is greater than the value of its possession to the plaintiff, if the interest of the plaintiff would not thereby be prejudiced and if the interests of justice so require, upon motion of the defendant, upon notice to the sheriff and to all parties to the action, and on such terms and on such security and conditions as to the court may seem proper, the court may order its return to the defendant.
2. If the court orders the return of the chattel to the defendant, it shall grant a 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. (d) Additional parties. A motion under this section, or service upon plaintiff of a notice of reclamation or exception to surety by a person not a party to the action, makes such a person a party to the action. Plaintiff shall serve a copy of the complaint upon such person within twenty days after he becomes a party.
S 7104. Seizing, reclaiming or returning less than all chattels. Where the seizure of two or more chattels is required by the order of seizure, the sheriff shall seize those chattels which can be found. Less than all of the seized chattels may be impounded, reclaimed or returned. The value of the chattels seized, as stated in the affidavit of the plaintiff, or as determined by the court upon application of the defendant, shall be the value for the purposes of subsequent undertakings in the action. Unless the court orders otherwise, the sheriff may, at any time before entry of judgment, seize those chattels not yet seized; the proceedings for reclaiming, impounding or returning a chattel subsequently seized are the same as on a former seizure.

S 7105. Sale of perishable property. Upon motion with such notice as the court may require, the court may order the sheriff to sell perishable property which has been seized. The court shall prescribe the time and place of the sale, and the manner and time in which notice thereof shall be given. Unless the court orders otherwise, the sheriff, after deducting his fees and necessary expenses, shall pay the proceeds into court to be held pending determination of the action.

S 7106. Payment of sheriff`s fees and expenses; liability of sheriff. (a) Payment of sheriff`s fees and expenses. The sheriff shall not deliver a chattel to the person entitled to possession unless such person shall, upon request, pay to the sheriff his lawful fees and the expenses necessarily incurred in taking and keeping the chattel. Such fees and expenses shall be taxed as costs in the action or may be taxed immediately upon motion and the sheriff may be required to refund any amount not found to be necessarily incurred.
(b) Liability of sheriff. A sheriff is liable for damages caused by his delivery of a chattel in violation of this article only to the extent that such damages can not be collected from the party to whom the chattel was delivered, or his surety. When a chattel is delivered by the sheriff to any party, as prescribed in this article, the sheriff ceases to be responsible for the sufficiency of the sureties of any party; until then, he is responsible for the sufficiency of the sureties of any party.
S 7107. Sheriff`s return. The sheriff shall file with the clerk a return within twenty days after he has delivered a chattel; it shall include all papers delivered to or served on him and a statement of all action taken by him. Where the sheriff has not filed a return before the hearing of a motion made by any party to punish him for contempt for such failure, he may be punished for contempt. At least ten days` notice of such motion shall be given to the sheriff.

S 7108. Judgment; execution in certain cases; enforcement by contempt. (a) Generally. Damages for wrongful taking or detention or for injury to or depreciation of a chattel may be awarded to a party. If an order of seizure granted without notice is not confirmed as required pursuant to paragraph four of subdivision (d) of section 7102, the plaintiff, unless the court orders otherwise upon good cause shown, shall be liable to the defendant for all costs and damages, including reasonable attorney`s fees, which may be sustained by reason of the granting of the order of seizure without notice, and the plaintiff`s liability shall not be limited to the amount of the undertaking. Except as provided in subdivision (b), judgment shall award possession of each chattel to the prevailing party or, if the action is discontinued or dismissed, to the person from whom it was seized; and where the person awarded possession is not in possession when judgment is entered, it shall in the alternative, award the value of each chattel at the time of trial or the sum for which it was sold under section 7105, decreased by the value of the interest of an unsuccessful party.
(b) Where value of chattel should not be awarded; execution. A verdict, report or decision in favor of the defendant where the chattel is in possession of the plaintiff at the time it is rendered shall not fix the value of the chattel where:
1. the plaintiff is the owner of the chattel but it was rightfully distrained doing damage, and the value of the chattel is greater than the damages sustained by the defendant; or
2. the plaintiff is the owner of the chattel, but the defendant had a special property therein, the value of which is less than the value of the chattel.
The verdict, report or decision shall state why the value of the chattel is not fixed, and the final judgment shall award to the defendant the amount of damages or value of his special property and, if such sum is not collected, possession of the chattel. An execution shall direct the sheriff to deliver possession of the chattel to the defendant unless the party in possession pays the sum awarded to the defendant with interest and sheriff`s fees and in case the chattel cannot be found within his county, then to satisfy that sum from the property of the party against whom the judgment is entered. If the chattel is in possession of the defendant, it may remain in his possession until the amount awarded is paid.
(c) Failure of jury to fix sum. If the jury shall fail to fix any sum required to be fixed by this section, such sum shall be fixed by a jury empanelled for the purpose upon motion made before the judge who presided at the trial within fifteen days after verdict.

S 7109. Unique chattel. (a) Injunction, temporary restraining order. Where the chattel is unique, the court may grant a preliminary injunction or temporary restraining order that the chattel shall not be removed from the state, transferred, sold, pledged, assigned or otherwise disposed of until the further order of the court.
(b) Judgment enforceable by contempt. Where the chattel is unique, the court, in addition to granting a judgment under section 7108, may direct that a party in possession deliver the chattel to the party entitled to possession. Disobedience of a judgment or order so directing may be punished as a contempt of court. If a party accepts the value of the chattel awarded to him by the judgment, he shall have no claim to the chattel.

S 7110. Sheriff`s powers. If the order of seizure so provides, the sheriff, in accordance with the order of seizure, may break open, enter and search for the chattel in the place where the chattel may be and take the chattel into his possession.

S 7111. Action on undertaking. An action on an undertaking cannot be maintained after final judgment until the return, wholly or partly unsatisfied, of an execution on the judgment for delivery of possession of the chattel or for payment of a sum of money in lieu of the chattel.

S 7112. Testimony by deposition to ascertain location of chattel. A party to an action to recover a chattel may move, upon such notice as the court may direct, upon a showing that he lacks knowledge of the location of the chattel or a part thereof, for an order to examine any person for the purpose of obtaining information with reference to such location. The order may be granted before or after service of summons and complaint, or anytime before or after final judgment, and may also restrain the adverse party from acting in violation of whatever rights the moving party may have in the chattel, upon the execution of a reasonable undertaking, with sufficient sureties, to reimburse the adverse party for all damages wrongfully caused by such restraint.