N.Y. Civil Practice Law and Rules 1318 – Motion papers; filing; demand; damages
§ 1318. Motion papers; filing; demand; damages. 1. Affidavit; other papers. On a motion for an order of attachment, or for an order to confirm an order of attachment, the claiming authority shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action and showing grounds for relief as required by section one thousand three hundred twelve of this article.
Terms Used In N.Y. Civil Practice Law and Rules 1318
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Summons: Another word for subpoena used by the criminal justice system.
2. Filing. Within ten days after the granting of an order of attachment, the claiming authority shall file it and the affidavit and other papers upon which it was based and the summons and complaint or proposed complaint in the action. A court for good cause shown may extend the time for such filing upon application of the claiming authority. Unless the time for filing has been extended, the order shall be invalid if not so filed, except that a person upon whom it is served shall not be liable for acting upon it as if it were valid without knowledge of the invalidity.
3. Demand for papers. At any time after property has been levied upon, the defendant may serve upon the claiming authority a written demand that the papers upon which the order of attachment was granted and the levy made be served upon him or her. As soon as practicable after service of the demand, the claiming authority shall cause the papers demanded to be served by mailing the same to the address specified in the demand. A demand under this subdivision shall not of itself constitute an appearance in the action.
4. Damages. The claiming authority shall be liable to the defendant for all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the attachment if the defendant recovers judgment, or if it is finally decided that the claiming authority was not entitled to an attachment of the defendant's property. In order to establish the claiming authority's liability, the defendant must prove by a preponderance of the evidence that in obtaining the order of attachment the claiming authority acted without reasonable cause and not in good faith.