Understanding Prejudgment Attachment in New York

In this article, we will cover the unique remedy of prejudgment attachment.

1. What Is Prejudgment Attachment?

Prejudgment attachment is a legal tool that lets a plaintiff secure a defendant's assets while a lawsuit is still pending. It acts like a lien on the defendant's property, making the plaintiff more likely to collect if they win the case. Because lawsuits can take time, and defendants may move or hide their assets, this remedy allows the court to "freeze" certain property until the case is resolved.

Importantly, prejudgment attachment does not mean the plaintiff has already won. It's simply a method of protecting the potential value of a judgment down the road.

2. When Is Attachment Available in New York?

In New York, the rules for prejudgment attachment are found in Article 62 of the Civil Practice Law and Rules (CPLR), specifically Sections 6201 to 6219. There is no automatic right to this remedy—it’s only allowed in certain situations, such as:

• The defendant is a foreign company not registered to do business in New York.

• The defendant lives outside New York.

• The defendant is hiding or moving assets out of state to avoid paying a judgment.

• The lawsuit is based on a judgment from another state or country that qualifies for recognition in New York.

• The plaintiff is a crime victim suing the convicted perpetrator.

These categories reflect the core idea behind attachment: the plaintiff must show a real risk that the defendant may make it difficult or impossible to collect later.

3. What Must a Plaintiff Show in Order to Obtain Attachment?

Prejudgment attachment is considered a harsh remedy because it interferes with a person’s property before they’ve been found liable. Thus, the court requires more than just filing a complaint. The plaintiff must show:

• A valid legal claim against the defendant (a cause of action);

• A strong chance of winning the case (probability of success);

• That one of the specific statutory grounds under CPLR 6201 applies; and

• That the amount the plaintiff is seeking is more than any known counterclaims.

All of this must be supported by actual evidence—not just general claims or suspicions. For example, if the plaintiff claims the defendant is hiding money to avoid paying, they need to show specific facts, not just a hunch.

When fraud is the basis for attachment, courts are especially cautious. The plaintiff must prove that the defendant is acting with intent to defraud creditors, not merely moving assets around for other reasons.

4. The Procedure: How Attachment Works.

Once the plaintiff meets all the legal requirements, they can ask the court for an order of attachment. In urgent cases, this can be done without giving notice to the defendant—what’s called an ex parte application. But if the court grants it this way, the plaintiff must then act quickly: within five days of the sheriff’s levy, the plaintiff has to file a motion to confirm the attachment and give the defendant notice.

The defendant has a right to challenge the attachment and argue that it should be lifted. If the defendant wants to free up their property, they can often do so by posting a bond in the same amount as the attached property.

Attachment can apply to different types of property. For real estate, the sheriff records the attachment with the county clerk. For personal property—like goods in a warehouse—the sheriff might seize the property directly or give a notice of levy. This sometimes requires help from a locksmith or movers, all arranged and paid for by the plaintiff.

Finally, the plaintiff must post a bond (called an “undertaking”) to protect the defendant in case it turns out the attachment wasn’t justified. The bond is usually at least equal in value to the property attached and is meant to cover damages, including legal fees, if the attachment is later found to be wrongful.

5. Risks, Limits, and Defendant Protections.

Because prejudgment attachment can seriously affect a defendant’s rights, courts don’t grant it lightly. Even when the technical legal requirements are met, judges have discretion to deny the request if they believe the plaintiff doesn’t truly need the remedy.

As Professor David Siegel notes in his well-known New York Practice treatise, courts will weigh the facts carefully and may reject attachment even if CPLR 6201 criteria are met, especially if there’s no clear need for security or jurisdictional reasons.

Also, attachment doesn’t help much if the defendant has no assets, or other creditors already tie up all of their assets. For example, a property already burdened by a mortgage or lien may not provide meaningful security for the plaintiff. And remember, the plaintiff is exposed to financial risk if the attachment is later reversed.

6. Conclusion: Is Attachment Right for Your Case?

Prejudgment attachment is a powerful but narrowly tailored remedy. It can be especially helpful in cases involving out-of-state defendants, foreign companies, or fraud. But it comes with strict requirements, procedural hurdles, and financial risk.

If you’re considering this remedy—or if you’ve been served with an attachment—you should consult a qualified attorney. At our firm, we regularly assist clients in evaluating whether attachment is appropriate and preparing the necessary paperwork to seek or oppose it in court.

Attachment can be a useful tool, but only when handled with care, strong evidence, and a full understanding of the legal and practical consequences. The attorneys at Thompson & Skrabanek have successfully achieved prejudgment attachment in the past and can assist you if you feel this remedy is needed in your case. Contact us today to discuss further.