Section 1: GENERALLY
An action to recover chattels may arise when a seller of goods wants to reclaim an item sold on installments because of the purchaser's nonpayment. Such an action is commenced prior to litigating the question of how much the seller is owed. This type of action also may involve utility companies, such as Con Edison or National Grid, which want to reclaim their meters from customers who have failed to pay their bills.
Replevin--a term no longer used in the CPLR--is not synonymous with an action to recover a chattel.
Return to top
Section 2: ORDER OF SEIZURE
In order for a marshal to proceed with a seizure of a chattel, he or she must receive certain papers from the plaintiff or plaintiff’s attorney. These papers play the same role in this type of action as an execution plays in levies and sales or a warrant plays in landlord and tenant matters. These papers give a marshal the needed authority to act.
Section 2-1: Papers to Proceed
The following are the papers which a marshal must have in order to proceed:
- The application for an order of seizure by an affidavit of the moving party that clearly identifies the chattel to be seized and that states:
- the plaintiff is entitled to possession;
- the defendant is holding the property wrongfully;
- the present status of any action to recover and, if the defendants have appeared, where papers may be served upon them;
- the value of the property claimed;
- facts sufficient to authorize the inclusion in the order of a provision authorizing the marshal to break and enter to search for the chattel, where the plaintiff seeks this provision;
- that no defense to the claim is known to the plaintiff; and
- if the plaintiff seeks an order of seizure without notice, facts to show that unless the order is granted, it is probable that the chattel will become unavailable for seizure;
- A copy of the order of seizure;
- A copy of the undertaking (which is a bond in the amount of at least twice the value of the property); and
- A copy of the summons and complaint bearing the index number and date of filing with the clerk of the court.
It is the marshal's responsibility to examine the papers to make certain that all have been provided and are sufficiently detailed. Specifically, the defendant's name and address, including apartment number, if any, as well as a description of the chattel, must be provided to avoid breaking and entering the wrong residence and/or taking the wrong chattel.
With respect to plaintiff utilities, Civil Court Directive 288 requires that the defendant be given prior notice of the application for an order of seizure authorizing the marshal to break and enter, and an opportunity to be heard. However, while it is the plaintiff who has this responsibility, a marshal should always verify with the plaintiff that the notice has been sent. Once the order has been signed, the marshal to whom it is delivered must mail a seventy-two (72) hour notice of seizure to the defendant in accordance with the order, which generally requires the notice to be mailed seven days in advance. The notice must advise the defendant of the date of the intended breaking and entering to search and seize the meter, and stating whether it is to take place in the morning or afternoon.
City marshals are advised that State law requires utility companies to take precautions in relation to the termination of residential service to a customer who is likely to suffer a serious impairment to his or her health or safety if heat-related service is terminated, or who is experiencing a medical emergency, or to a customer who is 62 or older, or blind, or disabled. As part of its application for the order of seizure, the utility’s supporting affidavit or affirmation customarily states in substance, among other things, that its records do not indicate that a medical emergency, disability or similar condition affects any customer who lives at the affected premises. Accordingly, if the marshal encounters or learns of such a customer who has not been brought to the attention of the court, he or she is advised to postpone the meter seizure and inform the utility of the situation for its further investigation and appropriate action. The marshal is advised to maintain in the marshal’s docket record a notation of the date and content of all pertinent communications and information brought to his or her attention and forwarded to the utility and of the action taken.
Return to top
Section 3: BREAKING AND ENTERING
The order of seizure may specify that a marshal has the authority to break and enter to collect property. However, a marshal may do so only when a court so orders. If such authority is not in the order, a marshal may not break and enter, and may gain entrance only if he or she is voluntarily admitted.
Generally, if the court does not order breaking and entering to seize the chattel, the court will restrain the defendant, in its order, from removing or disposing of the property. If the property disappears, the defendant may be held in contempt of court.
Return to top
Section 4: PROCEDURE
If the order authorizes a marshal to break and enter, this authority must be exercised with caution. That is, a marshal should find the easiest and least disruptive means of entry. If the property to be seized is a meter, a marshal should search the area where the plaintiff's records indicate the meter is located. Once a marshal has gained entry, he or she must serve all of the papers listed in § 2-1 above on each defendant in the same manner as a summons, as described in Chapter II, § 5.After the chattel has been removed, the premises must be secured.
Once the marshal seizes the chattel, the marshal must retain custody of it for ten (10) days, unless the court order specifies to the contrary. At the expiration of such period, the marshal must deliver the chattel to the plaintiff, provided that a notice of exception to the surety, a notice of motion for an impounding or returning order, or necessary papers to reclaim the chattel have not been served. Within twenty (20) days after delivery of the chattel, a marshal must file a return with the clerk of the court, which shall include all papers delivered to or served on the marshal and a statement of all actions the marshal has taken.