26 Court Street Brooklyn NY Lawyers' Provisional Seizure Remedies

A court will not issue a provisional seizure order unless the applicant establishes a substantial likelihood of prevailing on the underlying claim. This is not a preponderance of the evidence standard; the bar is higher. The applicant must show that the legal theory is sound and the factual support is credible. Additionally, the party seeking the order must prove by clear and convincing evidence that the defendant will dissipate assets if not restrained. Vague allegations of financial instability or general concern about the defendant's trustworthiness do not suffice.

A court may issue a provisional seizure order ex parte (without notice to the defendant) only in narrow circumstances where the applicant demonstrates that immediate seizure is necessary to prevent irreparable harm. Once an ex parte order issues, the defendant has a right to a hearing within 10 days to challenge the order. This hearing is critical; the defendant can present evidence rebutting the dissipation claim or attacking the merits of the underlying case. Many ex parte orders do not survive this hearing because the applicant's evidence, scrutinized under adversarial conditions, proves insufficient. The 10-day window is not advisory; courts enforce it strictly, and failure to hold the hearing on time can invalidate the entire seizure.

The Commercial Division of Kings County Supreme Court has developed a sophisticated jurisprudence on provisional seizure, particularly in cases involving business disputes and creditor claims. Judges in this division are skeptical of dissipation arguments based on mere suspicion. Courts often struggle with balancing protection and autonomy, and they have held that the applicant must point to specific facts suggesting the defendant has a history of hiding assets, is judgment-proof, or has already begun transferring property. Conclusory statements about the defendant's intent to dissipate carry little weight. The court will also consider whether the defendant has ties to the jurisdiction and whether other security measures (such as posting a bond or obtaining a judgment lien) would be less intrusive.

Provisional seizure in civil cases differs from DOJ seizure actions, which involve federal law enforcement and criminal or civil forfeiture statutes. However, practitioners should understand the distinction because a defendant facing both civil provisional seizure and potential government asset freezes faces compounded financial pressure. The procedural protections differ significantly; DOJ actions follow federal rules and may involve different notice and hearing requirements. For clients navigating overlapping civil and government asset preservation matters, early coordination with counsel experienced in both areas is prudent.

Provisional seizure principles also arise in family law disputes, particularly in matrimonial cases where one spouse seeks to freeze marital assets pending divorce. The New York Family Court has authority to issue restraining orders and preliminary injunctions to preserve assets, though the procedural framework differs slightly from commercial provisional seizure. In matrimonial cases, courts balance the need to protect marital property against the right of both spouses to access funds for living expenses and legal fees. Practitioners should be aware that family court investigation into hidden assets often precedes or accompanies requests for asset preservation orders. A spouse who attempts to conceal assets during a family court proceeding faces both contempt sanctions and adverse inferences at trial.

Once a provisional seizure order is in place, strict compliance is mandatory. Violation can result in contempt of court, personal liability for the defendant, and attorney fees. The defendant should not attempt to move or liquidate assets in violation of the order. However, courts recognize that defendants need access to funds for ordinary living expenses and legitimate business operations. A defendant can seek modification of the order to allow limited withdrawals for necessities or to release specific assets. These modification requests require a showing that the order is causing undue hardship and that the applicant's interests can be protected through alternative measures.