What the remedy does
A provisional attachment order freezes a defendant's property before the case is decided, to secure a possible judgment. In New York, the remedy is available only on grounds set by statute, such as certain situations involving defendants outside the state or defendants acting to frustrate a judgment, and courts treat it as drastic. The plaintiff must also show a likely claim and post an undertaking that can compensate the defendant if the attachment proves wrongful. An order may be granted without notice, but it must then be confirmed by the court promptly. Federal courts in New York generally apply state attachment law, while maritime claims have a separate admiralty attachment procedure.
Seeking an attachment
A plaintiff needs evidence, usually in affidavits, about the claim, the statutory ground, and the property to be attached. Bank accounts and receivables are common targets. Because an order can seriously harm a business, judges look closely at the evidence, and overreaching can lead to liability for damages the attachment causes. If assets are in Korea or another country, provisional measures may have to be sought there under local law, since recognition of a US prejudgment order abroad is not automatic. Gather the contracts, payment records, evidence of asset transfers, and what you know about where the defendant's assets are.
Facing an attachment
A defendant whose property has been frozen can move to vacate or modify the order, often arguing that the statutory ground is not met, the claim is weak, or the amount is excessive. Posting security may release the attached property. Banks generally keep accounts frozen under the order until it is lifted or modified. If the attachment turns out to be wrongful, the defendant may seek damages from the undertaking. We start by reviewing the order, the papers supporting it, and the effect on your business, then move quickly on confirmation or vacatur.
