Motion for an Order of Seizure in New York

What Is a Motion for an Order of Seizure?

Background

“An order of seizure is an appropriate remedy against a wrongful taking or detention of property.” (Gen. Elec. Co. v. Am. Export Isbrandsten Lines, Inc., 37 A.D.2d 959, 960 [2nd Dept. 1971].)

How to Structure the Motion

Article 71 of Civil Practice Law and Rules creates a cause of action to “try the right to possession of chattel.” (Civ. Prac. Law & Rules, § 7101.) The issue in actions brought under this article is simply which party has the superior possessory right to the collateral. (Roach v. Curtis, 191 N.Y. 387, 390 [1908].) A motion for an order of seizure shall be supported by an affidavit which clearly identifies the chattel to be seized, and it shall state:

that the plaintiff is entitled to possession by virtue of facts;
that the chattel is wrongfully held by the defendant;
whether an action to recover the chattel has been commenced;
the value of each chattel or class of chattels claimed;
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;
that no defense to the claim is known to the plaintiff; and
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.

(Civ. Prac. Law & Rules, § 7102(c); Red Apple Supermarkets v. Malone & Hyde, Inc., 228 A.D.2d 176 [1996]; Siemens Med. Solutions USA, Inc. v. Magnetic Resonance Imaging Assoc. Of Queens, P.C., 100 A.D.3d 620, 621 [2012].)

To obtain an order of seizure, the plaintiff must satisfy all the prerequisites of Section 7102(c) of Civil Practice Law and Rules. (Red Apple Supermarkets v. Malone & Hyde, Inc., 228 A.D.2d 176 [1996].) He or she “must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim.” (Great Am. Ins. Co. v. Auto Market of Jamaica, N.Y., 133 A.D.3d 631, 631-32 [2nd Dept. 2015].)

Response

“[T]here are defenses which, if asserted in good faith, will defeat an application [for seizure] pending trial.” (Scutti Pontiac, Inc. v. Rund, 92 Misc. 2d 881, 884, 402 N.Y.S.2d 144, 147 [Sup. Ct. Monroe Cty. 1978].) Indeed, a defendant in a seizure action is “entitled to present any good faith defense… that it has a superior possessory right to the [goods at issue].” (F. & M. Schaefer Corp. v. Elec. Data Sys. Corp., 430 F.Supp. 988, 990 [S.D.N.Y. 1977].) However, “there mere assertion of a defense or counterclaim will not defeat the right to an order of seizure.” (Scutti Pontiac, Inc. v. Rund, 92 Misc. 2d 881, 884, 402 N.Y.S.2d 144, 147 [Sup. Ct. Monroe Cty. 1978].)

The Court’s Decision

It is clear that the legislature saw fit to afford the court of original jurisdiction substantial discretion in determining whether to grant orders of seizure. (Consolidated Edison Company of N.Y., Inc. v. Haymer, 138 Misc. 2d 95 [App. Term, 1st Dept. 1988].) The court may grant an order of seizure “upon finding that it is probable the plaintiff will succeed on the merits.” (Merchants Bank of New York v. Itzkoff, 1 A.D.3d 178, 178-79 [1st Dept. 2003].)

An order of seizure is “essentially possessory in its nature.” (Roach v. Curtis, 191 N.Y. 387, 390 [1908].) It is a provisional remedy which may be used as an incident to an action to recover a chattel. (East Side Car Wash v. K.R.K. Capitol, 102 A.D.2d 157, 161 [1984].) It is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel (Staff v. Hemingway, 47 A.D.2d 709 [1975].) “The movant has a heavy burden to demonstrate its entitlement to a provisional remedy, especially one as drastic as pretrial seizure of the very chattels that are the subject of the replevin action.” (Spartan Built, Ltd. v. Modas Rest, Inc., 159 Misc. 2d 530, 530 [Civ. Ct. N.Y. Cty. 1993].)

Documents for Motion for an Order of Seizure in New York

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STIPULATION - SO ORDERED

3 pages

YORK OUN Kk 04 09 Od WV INDEX NO. 650682/2024 NYSCEF BOC. NO. 81 RECEIVED NYSCEF 04/23/2024 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK: COMMERCIAL DIVISION x WHITE OAK COMME…

Case Name White Oak Commercial Finance, Llc v. Ny And Co Ecomm Llc, Fashion To Figur…