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HandBook of Regulations

Effective Date: April 24, 2013

CHAPTER VII - Attachment

 

Section 1: GENERALLY

An order of attachment is a means of providing a plaintiff with security for a money judgment prior to the termination of his or her lawsuit.  It is used when a plaintiff is fearful that, once the plaintiff wins a money judgment, the plaintiff will not be able to enforce it against a judgment debtor.  The order of attachment empowers a marshal to seize and possess property belonging to the judgment debtor until the conclusion of the litigation.

This order is obtained from the Court by a plaintiff and may be granted at any time prior to judgment, even before the service of a summons and complaint.   However, if it is obtained before the service of a summons and complaint, it is valid only if within sixty (60) days after the order is granted a summons is served on the defendant, unless an additional sixty (60) day extension is granted by the court.

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Section 2: ORDER

The order of attachment must specifically state the amount the plaintiff is demanding (which then dictates the amount of property that may be attached), and it must be endorsed with the name and address of the plaintiff's attorney. The order gives the marshal the authority to levy upon any personal property in which the defendant has an interest, or any debts owed to the defendant within the confines of New York City.  A marshal may levy upon as much property as the marshal feels will reasonably satisfy the plaintiff's demand, together with interest, costs, and marshal's fees and expenses.   It is not necessary to levy upon property which will meet the exact dollar amount in the attachment order, but a marshal should be cautious and exercise discretion.

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Section 3: LEVY BY SERVICE

A marshal may levy upon any interest of the judgment debtor in personal property or upon any debt owed to him or her by serving a copy of the order of attachment, in the same manner as a summons, upon the garnishee or upon the defendant himself or herself, if he or she is in possession of the property to be levied upon.   The attachment is effective only if, at the time of service, the garnishee owes a debt to the defendant or is in possession of property in which the defendant has an interest.  The levy is then effective for ninety (90) days as to any of the defendant's personal property that comes into the garnishee's possession or any debt that becomes due to the defendant within the effective period of the levy.  After ninety (90) days, or such further time as provided by order of the court served on the garnishee, the levy is ineffective except as to that property already within a marshal's control.

As in a property execution, unless the court orders otherwise, a garnishee served with an attachment is required to transfer all personal property of the judgment debtor to the marshal forthwith, to pay to the marshal all debts owed to the defendant as they become due, and to execute any documents necessary to effect transfer of payment.  Where the garnishee fails or refuses to make delivery of the defendant's property, the marshal should notify the plaintiff's attorney. Remedies are available, but only by a special proceeding in court.   The marshal does not institute this proceeding.  It is brought by the judgment creditor or his or her attorney.

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Section 4: LEVY BY SEIZURE

As an alternative to levying by service of the attachment order, if the property is “capable of delivery,” a marshal may effect a valid levy by serving a copy of the order, in the same manner as a summons, upon the person from whose possession or custody the property was taken, and seizing the defendant's property.  However, this may be done only at the direction of the plaintiff, and he or she must provide the marshal with indemnity against wrongful levy to the satisfaction of the marshal or the court.   As with a property execution, a marshal need not actually take the property into the marshal’s possession, but must at least exercise dominion and control over the property.

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Section 5: DUTIES AFTER LEVY

Once a marshal has attached the defendant's property, it is the marshal’s responsibility to keep safe all property attached, or debts paid him or her, in order to satisfy any judgment that may be obtained against the defendant.

If the situation requires it, the court may direct the sale or other disposition of the property levied upon.  If the case is pending in the New York City Civil Court, pursuant to New York Civil Court Directive 334, within three (3) days after the levy is made, the plaintiff must make a motion, on notice to the defendant, to any garnishee, and to the marshal for leave to prove the ground upon which the order of attachment was issued.  If no such motion is made, the order of attachment shall be deemed vacated.  No disposition of the levied property shall be made until final determination of the motion.

Within fifteen (15) days after the service of an order of attachment (or forthwith if the order has been vacated), a marshal must file an inventory of the property seized, the names and addresses of all persons served with the order of attachment, and an estimate of the value of all property levied upon.   Money shall be kept in an interest-bearing account.

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Section 6: GARNISHEE'S STATEMENT

Within ten (10) days after service of an order of attachment upon a garnishee, or such shorter time as the court may direct, the garnishee must serve upon the marshal a statement specifying all debts of the garnishee owed to the defendant, when the debts are due, all personal property of the defendant which is in the possession of the garnishee and the amounts and value of the debts and property specified.

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Section 7: DISCHARGES, VACATUR, AND ANNULMENT

A defendant whose property or debt has been levied upon may make a motion, upon notice to the marshal and to the plaintiff, for an order discharging the attachment, as to all or part of the property or debt, provided he or she pays marshal fees and expenses, and gives an undertaking in an amount equal to the value of the property levied upon sought to be discharged.

Any person with an interest in the property levied upon may make a motion for a vacatur or modification of the order of attachment.

An order of attachment is annulled when judgment is entered in favor of the defendant, when the plaintiff's judgment is satisfied, or when the underlying action is discontinued. An attachment is not annulled, however, when the plaintiff simply wins a judgment.

When an execution is issued against a defendant, a marshal's duty with respect to the disposition of the attached property is the same as if the marshal had levied upon it pursuant to the execution.

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Section 8: PRIORITY OF ORDERS OF ATTACHMENT

Where two or more attachments are delivered to the same marshal, they shall be satisfied out of the proceeds of personal property in the order in which they were delivered to the marshal.  Where the attachment orders are delivered to different marshals or to a marshal and the sheriff, priority is given to the plaintiff whose attachment is served first.  Thus, a marshal must note the date and time of delivery of the order and should act upon it as quickly as possible.

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Section 9: RETURN OF PROPERTY

The court may direct the clerk of any county to cancel a notice of attachment and may direct the marshal to return or release the attached property, subject to the payment of marshal's fees and expenses.



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