Well...I have been searching the Laws of New York trying to locate whether there is a provision for prejudgment remedies. There may well be such provision in the Civil Practice Laws and Rules (CVP). So, watch them...they might well try it. Not much of a chance from what I hear, but...:
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWSThis is Article 63, section 6301:
§ 6301. Grounds for preliminary injunction and temporary restraining
order. A preliminary injunction may be granted in any action where it
appears that the defendant threatens or is about to do, or is doing or
procuring or suffering to be done, an act in violation of the
plaintiff's rights respecting the subject of the action, and tending to
render the judgment ineffectual,or in any action where the plaintiff
has demanded and would be entitled to a judgment restraining the
defendant from the commission or continuance of an act, which, if
committed or continued during the pendency of the action, would produce
injury to the plaintiff. A temporary restraining order may be granted
pending a hearing for a preliminary injunction where it appears that
immediate and irreparable injury, loss or damage will result unless the
defendant is restrained before the hearing can be had.
In other words, the court can order,
before a court hearing takes place that the defendant not do something pending the outcome of such hearing IF the plaintiff would be injured thereby. Like, the defendant's taking property and making it unavailable to settle a judgment if the chances are good that a plaintiff's ability to recover be severely impaired should there be a judgment.
The Article continues...
§ 6311. Preliminary injunction. 1. A preliminary injunction may be
granted only upon notice to the defendant. Notice of the motion may be
served with the summons or at any time thereafter and prior to judgment.
(Inapplicable sections edited)
Preliminary injunctions can be granted at any time, including being served with the summons.
Rule 6312. Motion papers; undertaking; issues of fact. (a) Affidavit;
other evidence. On a motion for a preliminary injunction the plaintiff
shall show, by affidavit and such other evidence as may be submitted,
that there is a cause of action, and either that the defendant threatens
or is about to do, or is doing or procuring or suffering to be done, an
act in violation of the plaintiff's rights respecting the subject of the
action and tending to render the judgment ineffectual; or that the
plaintiff has demanded and would be entitled to a judgment restraining
the defendant from the commission or continuance of an act, which, if
committed or continued during the pendency of the action, would produce
injury to the plaintiff.
This part is the authorization under law for prejudgment remedies. So, despite what one may hear, NY State Law DOES have this provision available.
(b) Undertaking. Except as provided in section 2512, prior to the
granting of a preliminary injunction, the plaintiff shall give an
undertaking in an amount to be fixed by the court, that the plaintiff,
if it is finally determined that he or she was not entitled to an
injunction, will pay to the defendant all damages and costs which may be
sustained by reason of the injunction, including:
1. if the injunction is to stay proceedings in another action, on any
ground other than that a report, verdict or decision was obtained by
actual fraud, all damages and costs which may be, or which have been,
awarded in the other action to the defendant as well as all damages and
costs which may be awarded him or her in the action in which the
injunction was granted; or,
2. if the injunction is to stay proceedings in an action to recover
real property, or for dower, on any ground other than that a verdict,
report or decision was obtained by actual fraud, all damages and costs
which may be, or which have been, awarded to the defendant in the action
in which the injunction was granted, including the reasonable rents and
profits of, and any wastes committed upon, the real property which is
sought to be recovered or which is the subject of the action for dower,
after the granting of the injunction; or,
3. if the injunction is to stay proceedings upon a judgment for a sum
of money on any ground other than that the judgment was obtained by
actual fraud, the full amount of the judgment as well as all damages and
costs which may be awarded to the defendant in the action in which the
injunction was granted.
(c) Issues of fact. Provided that the elements required for the
issuance of a preliminary injunction are demonstrated in the plaintiff's
papers, the presentation by the defendant of evidence sufficient to
raise an issue of fact as to any of such elements shall not in itself be
grounds for denial of the motion. In such event the court shall make a
determination by hearing or otherwise whether each of the elements
required for issuance of a preliminary injunction exists.
The plaintiff has to provide proof to the court that they can pay the full damages should it be determined that the order against the defendant was sought and granted without sufficient grounds to do so. This is probably either by depositing the amount with the court or by bond. This indicates that such prejudgment remedies are a risky manouever.
If the defendant can convince the court to grant the order, it can take effect without prior notice, a feature of prejudgment remedy law generally:
§ 6313. Temporary restraining order. (a) Generally. If, on a motion
for a preliminary injunction, the plaintiff shall show that immediate
and irreparable injury, loss or damages will result unless the defendant
is restrained before a hearing can be had, a temporary restraining order
may be granted without notice. Upon granting a temporary restraining
order, the court shall set the hearing for the preliminary injunction at
the earliest possible time. <<snip>>
(b) Service. Unless the court orders otherwise, a temporary
restraining order together with the papers upon which it was based, and
a notice of hearing for the preliminary injunction, shall be personally
served in the same manner as a summons.
(c) Undertaking. Prior to the granting of a temporary restraining
order the court may, in its discretion, require the plaintiff to give an
undertaking in an amount to be fixed by the court, containing terms
similar to those set forth in subdivision (b) of rule 6312, and subject
to the exception set forth therein.
If it's used improperly, such temporary restraining order can be lifted, also without notice, and may well leave the moving party liable for damages:
§ 6314. Vacating or modifying preliminary injunction or temporary
restraining order. A defendant enjoined by a preliminary injunction may
move at any time, on notice to the plaintiff, to vacate or modify it. On
motion, without notice, made by a defendant enjoined by a temporary
restraining order, the judge who granted it, or in his absence or
disability, another judge, may vacate or modify the order. An order
granted without notice and vacating or modifying a temporary restraining
order shall be effective when, together with the papers upon which it is
based, it is filed with the clerk and served upon the plaintiff. As a
condition to granting an order vacating or modifying a preliminary
injunction or a temporary restraining order, a court may require the
defendant, except where the defendant is a public body or officer, to
give an undertaking, in an amount to be fixed by the court, that the
defendant shall pay to the plaintiff any loss sustained by reason of the
vacating or modifying order.
The same protection granted earlier to the defendant if the order is issued is also granted to the plaintiff if the defendant wants to have the order vacated.
§ 6315. Ascertaining damages sustained by reason of preliminary
injunction or temporary restraining order. The damages sustained by
reason of a preliminary injunction or temporary restraining order may be
ascertained upon motion on such notice to all interested persons as the
court shall direct. Where the defendant enjoined was an officer of a
corporation or joint-stock association or a representative of another
person, and the amount of the undertaking exceeds the damages sustained
by the defendant by reason of the preliminary injunction or temporary
restraining order, the damages sustained by such corporation,
association or person represented, to the amount of such excess, may
also be ascertained. The amount of damages so ascertained is conclusive
upon all persons who were served with notice of the motion and such
amount may be recovered by the person entitled thereto in a separate action
The amount of damages, if the temporary injunction/restraining order results in damages, the court determines how much they shall be. Those damages are then sued for in a separate action.
Article 62 supports the existence of such prejudgment remedy:
§ 6201. Grounds for attachment. An order of attachment may be granted
in any action, except a matrimonial action, where the plaintiff has
demanded and would be entitled, in whole or in part, or in the
alternative, to a money judgment against one or more defendants, when:
1. the defendant is a nondomiciliary residing without the state, or is
a foreign corporation not qualified to do business in the state; or
2. the defendant resides or is domiciled in the state and cannot be
personally served despite diligent efforts to do so; or
3. the defendant, with intent to defraud his creditors or frustrate
the enforcement of a judgment that might be rendered in plaintiff's
favor, has assigned, disposed of, encumbered or secreted property, or
removed it from the state or is about to do any of these acts; <<snip>> (inapplicable section removed)
5. the cause of action is based on a judgment, decree or order of a
court of the United States or of any other court which is entitled to
full faith and credit in this state, or on a judgment which qualifies
for recognition under the provisions of article 53.
They can seek an order to attach property if it is feared that it will be disposed of to thwart a judgment or future judgment...including one granted outside the state that has not yet been domesticated!
This is even more support for the existence of a prejudgment remedy:
§ 6211. Order of attachment without notice. (a) When granted;
contents. An order of attachment may be granted without notice, before
or after service of summons and at any time prior to judgment. It shall
specify the amount to be secured by the order of attachment including
any interest, costs and sheriff's fees and expenses, be indorsed with
the name and address of the plaintiff's attorney and shall be directed
to the sheriff of any county or of the city of New York where any
property in which the defendant has an interest is located or where a
garnishee may be served. The order shall direct the sheriff to levy
within his jurisdiction, at any time before final judgment, upon such
property in which the defendant has an interest and upon such debts
owing to the defendant as will satisfy the amount specified in the order
of attachment.
ANY property...which would include...the money in that bank account! There is NO exception here that would preclude such a garnishment order. Also note the term "prejudgment remedy" does not appear; the language of the statute would cover the action. There is also no specific mention of bank accounts, but they are property which is subject to garnishment.
