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18 Cards in this Set
- Front
- Back
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Purpose of Provisional Remedies →
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to maintain the status quo prior to judgment
a. Usually PRs are requested by πs, but PRs are available to a D on a counterclaim, a cross-claim against another named D, or an impleader complaint where a D impleads a 3d pty into a lawsuit |
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4 PRs – LIAR
L- Lis pendens 1/3 |
a. L – lis pendens (notice of pendency) – cannot transfer or sell property
i. The purpose for filing an LP is to protect some interest claimed by π in D’s real property, which interest could be lost if D sells the property to a BFP (bona fide purchaser) PRIOR to the π’s judgment ii. An LP is a one-page sheet filed in the County Clerk’s office where the D owned the realty 1. It DOES NOT create a lien on the realty, BUT it serves as constructive notice that will defeat a subsequent purchaser status as a BFP a. “constructive notice” = CIA 2. After π files the LP, then anyone thereafter who acquires an interest in D’s realty (i.e. a bank giving a mortgage, or a buyer of the property) cannot claim BFP status because the purchaser had notice of π’s claim to the realty a. THUS, the subsequent interests are subject to π’s judgment 3. By filing an LP, D’s title to realty is rendered unmarketable, restricting his right to obtain a mortgage, or to sell the property |
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4 PRs – LIAR
L- Lis pendens 2/3 |
iii. In order to be able to file an LP, π’s judgment must directly divest D of ownership, use, enjoyment, or possession of the realty (think of local actions in venue – WASP MEN)
iv. The procedure for the LP is the simplest of all PRs! 1. Π’s atty just files the one-page document in the County Clerk’s office where the realty is located 2. It can be filed prior to serving the summons, in which case, the summons must then be served within 30 days from filing |
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4 PRs – LIAR
L- Lis pendens 3/3 |
v. The LP is the ONLY PR where the π is NOT required to be a SLOB: conjunctive
1. S – sheriff is not involved 2. L – there is no court review of π’s likelihood of success on the merits of her claim 3. O – no court order is required 4. B – no bond must be posted by π vi. An LP is good for 3 years, and then it expires UNLESS π extended it by court order for another 3 years upon good cause shown 1. BUT this motion must be made AND the ct order filed before first 3 years expires 2. OTHERWISE, under the no second chance doctrine, π is prevented from refilling a new LP. NYAA 170-71. |
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I
LIAR |
a preliminary injunction. Feb 2010 Essay 3; Feb 2007 Essay 3, NYEB 504.
i. A prelim injunction seeks to prevent one party from harming another’s interest during a lawsuit – used to maintain the status quo ii. Generally, NOT available where π is suing to collect a debt and seeks to prevent a D’s transfer of her NY assets (NYAA 168) |
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An injunction is available:
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1. Where D’s conduct is threatening to destroy π’s right in the SJ of a lawsuit
a. Ex. To prevent D’s transfer or destruction of property which is the subject matter of π’s lawsuit 2. In an action seeking a permanent injunction |
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will NOT grant a PI UNLESS π demonstrates by clear and convincing evidence LIE: NYLO 279-80 conjunctive
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1. ✪Examiners love PIs, especially equities, because requires test-taker to explain
2. L – likelihood of π’s success on the merits of her claim a. This requires a probability, but not a certainty of success 3. I – irreparable injury is occurring, or will occur, unless court grants injunction a. Mere apprehension that an irreparable injury may occur is NOT ENOUGH b. Π must demonstrate that D’s acts are occurring or are threatened and likely to occur c. Irreparable injury can be: i. That which cannot be repaired or restored, i.e. loss of trade secrets, good will, or loss of reputation ii. Where π cannot be adequately compensated by money iii. Where $ damages cannot be easily measured by the court 1. Determining damages would be difficult and complex |
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E-equities
LIE |
4. E – equities, when balanced by the ct, clearly tip in π’s favor
a. Court will use the comparative hardship theory → weighs the harm π will suffer if injunction is denied and the harm D will suffer if granted b. Ct will grant the injunction where π presents proof that comparative harm she would suffer where injunction not granted is significantly greater than the harm D would suffer if injunction is granted c. Essay 3 Feb 2010 – where PI sought to restrain pit bull during proceedings = weighed in favor of little girl who was at risk of getting killed by dog (outweighed hardship to owner of muzzling his dog) |
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Injunction-Requirements
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A PI requires notice to D of motion, posting of a bond, and ct can issue ONLY AFTER summons has been served on D
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Temporary Restraining Order:
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may be obtained from ct pending a hearing for the PI
1. But it MUST appear that immediate and irreparable injury will result UNLESS D is restrained prior to the PI hearing – present an order to show cause to satisfy 2. A TRO is the opposite from a PI – it can be obtained WITHOUT a bond, and PRIOR to service of a summons 3. BUT in order to obtain a TRO ex parte (no notice to D), π’s motion papers MUST SHOW SIP: that there will be significant and immediate prejudice to D by giving notice to D a. Absent SIP, π must give D notice of the time and place she will be seeking TRO from the ct |
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Once an Injunction is granted/Penalty
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vii. Once an injunct is granted, it is binding on D’s family members and employees who had knowledge of the injunc, EVEN THOUGH they were not served with the injunction
viii. Penalty: the penalty for disobeying the ct’s injunction is contempt of ct 1. Vehicle is a special proceeding (speedy) with bold notice on the motion papers that the D may be imprisoned or fined, or both 2. Two types of contempt: civ and crim 3. To sustain a finding of contempt, MUST prove: a. A violation of a ct order that clearly expressed an unequivocal mandate, b. D had knowledge of the ct’s order (had notice), AND c. D knowingly violated ct’s order 4. What makes a contempt proceeding civil rather than criminal is based on who’s authority will be vindicated by contempt proceeding – π or court/government a. Purpose of civil contempt is to compensate π and to coerce D’s compliance w ct’s order i. Fine imposed is paid to π b. Purp of crim contemt is to protect the integrity of the ct i. Fine paid to state treasury |
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Injunction-when a matrimonial action is commenced
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ix. When a matrimonial action is commenced, π must serve simultaneously with a summons a statutory restraining order preventing both spouses without a court order, or the written consent of other spouse from transferring, altering, hiding, or otherwise affecting a spouse’s:
1. Real or personal property, including bank accounts, stock brokerage accounts, or pension plans, 2. Health or life insurance policies, 3. Is incurring unreasonable debts or credit card expenses OTHER THAN customary household expenses OR atty’s fees in litigation |
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A
LIAR |
c. A – order of attachment. NYLO 292.
i. Directs NY sheriff to seize D’s NY assets located in sheriff’s county at any time prior to judgment ii. The attached asset is then held by sheriff as security to pay $ judgment (i.e. NOT specific performance of K) when it is obtained by π iii. The attachment PR is available whenever a π has demanded $ in whole or in part, or in the alternative, EXCEPT in matrimonial actions 1. It CAN be obtained BEFORE service of summons, BUT summons must then be served within 60 days from when ct signed order a. OTHERWISE, ct will vacate the order |
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Conditions for an order of attachment
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2. Extraordinary circumstances must exist BEFORE ct grants an attachment order! FIND CJ:
a. F – D is a foreign corporation NOT licensed to do business in NY b. I – with the intent to defraud creditors OR to frustrate enforcement of π’s $ judgment i. D has concealed or transferred his assets or is about to do so (constructive fraud) ii. Π’s allegations of D’s intent to defraud MUST BE more than conclusory (“I believe”) to sufficiently establish this ground c. N – D is a non-domicile, residing outside the state d. D – D is a NY domicile or resident, BUT who CANNOT be served, despite diligent efforts to do so indicates that if $ judgment secured, would be difficult to actually get it from him e. C – π is a crime victim suing a convicted felon f. J – π’s coa is based on an out-of-state judgment that must be confirmed by the NY ct BEFORE it can be enforced in NY, OR i. A foreign judgment entitled to comity ii. Here, a π usually will use 3213 motion for SJ in lieu of a complaint |
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Procedure for an order of attachment
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iv. Procedure: to obtain order of attachment, make a simple motion either ex parte, or on notice to D
1. Includes: affidavit and one of the FIND CJ grounds 2. If the order was obtained ex parte, then π must quickly obtain from ct an order to show cause to confirm the attachment order, which must be signed and served on D no later than 5 days after D’s property was seized 3. But π has 10 days if D is an out-of-state foreign corp, or a non-domicile v. Query: what assets can the sheriff attach? 1. Any property located in NY that D could assign (sell or gift) (car, stock) 2. Limit: There is NO GARNISHMENT of D’s wages AND property located outside NY CANNOT be attached, EVEN IF ct has personal jurisdiction over the person holding that asset. NYAA 114. |
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R
LIAR |
d. R – ct can appoint a receiver upon a clear showing of a necessity to conserve the property involved in an equitable action where there is danger of waste, mismanagement, or dissipation or the SJ of lawsuit
i. Most frequently receivers are used in: 1. Actions to dissolve a partnership or closely-held corp 2. Mortgage foreclosures of commercial mortgages ii. The motion for a receiver is on notice to D, but the right to notice can be waived e. With exception of lis pendens, the LIAR π must post an undertaking (bond) fixed by the ct f. In the event that D wins, or where ct ultimately determines that π should not have used a PR, then strict liability is imposed for wrongfully using a PR i. This liability can exceed the amount fixed in the bond that was posted by π ii. Exception: a wrongfully obtained preliminary injunction where damages are limited to the amount of the bond UNLESS D can establish π’s malice |
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Due Process Implications of Provisional Remedies
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a. Before the court allows the use of LIAR, it MUST ensure that DP is satisfied by a COP:
i. C – showing by clear and convincing evidence that π is LIKELY to succeed and is entitled to a PR because of existing extraordinary circumstances ii. O – order must be signed by a judge iii. P – an “immediate” post-seizure hearing is required if LIAR was obtained ex parte (no ct intervention) 1. 5-10 days is immediate b. A notice of pendency is not subject to COP because it merely provides others with notice that π’s action is pending against D’s real property i. When a LP is filed, π does NOT actually seize D’s realty (as sheriff does with order of attachment), and D is NOT deprived of its use or possession. NYAA 169. |
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pre-judgment seizure of chattel involved in a replevin action where π is seeking a return of personal property
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4. In addition to LIAR, CPLR Art 71 also provides for pre-judgment seizure of chattel involved in a replevin action where π is seeking a return of personal property
a. A π can seek a court order ordering sheriff to seize the chattel and to turn it over to π for safe-keeping UNTIL final judgment b. A bond is required to obtain a replevin order in an amount of twice the value of the chattel c. In addition to recovering possession of the chattel, π may also recover damages to the chattel that may have been done, AS WELL AS to recover its fair rental value from the time of the wrongful possession to the time of trial d. Alternatively, a π may sue for the tort of conversion, BUT measure of damages generally is the value of the good on the date it was stolen, UNLESS the chattel had a fluctuating value, allowing π to recover higher value at the time of trial i. Both claims can be asserted in the same complaint, BUT π MUST elect just one prior to the issue being decided by the jury |
