1. When Courts Grant Prejudgment Attachment and What It Means for Your Assets
Prejudgment attachment serves the plaintiff's interest in ensuring that a defendant cannot dissipate assets before a final judgment. Under New York CPLR Section 6201, a court may order attachment of your property if the plaintiff demonstrates that a judgment is likely and that you pose a risk of asset dissipation. This is not a judgment itself; it is a provisional remedy designed to preserve the plaintiff's ability to collect if they win. Once attached, your assets are effectively frozen, making it impossible to sell real estate, withdraw from bank accounts, or transfer business interests without court permission.
The Legal Standard and Burden of Proof
The plaintiff must satisfy two distinct requirements. First, they must show a reasonable likelihood of obtaining judgment on the merits. Second, they must demonstrate that there is a substantial likelihood you will transfer, conceal, or dissipate assets to avoid satisfying a judgment. Courts interpret these criteria narrowly; a mere allegation of risk is insufficient. The plaintiff typically must present evidence of your financial condition, prior conduct, or specific facts suggesting intent to hide or move assets. In practice, these cases are rarely as clean as the statute suggests, and judges often scrutinize the plaintiff's evidence carefully before granting such an intrusive remedy.
Attachment in New York Supreme Court and the Role of the Judge
Prejudgment attachment applications in New York Supreme Court are governed by strict procedural rules. The plaintiff must move for attachment by order to show cause, and you have the right to appear and contest the motion. The assigned Supreme Court judge evaluates the affidavits, financial disclosures, and oral argument before deciding whether to grant attachment. This judicial gatekeeping function is critical; it prevents attachment from becoming a tool for harassment or overreach. Many defendants successfully defeat attachment motions by demonstrating stable financial ties to New York, lack of prior asset concealment, and legitimate business reasons for their financial structure.
2. Bonding Requirements and the Plaintiff's Own Obligations
A significant protection built into the attachment statute is the bond requirement. Under CPLR 6212, the plaintiff must post a bond, typically equal to the amount of the attachment sought, to indemnify you against wrongful attachment. If the plaintiff ultimately loses the case, or if the attachment was granted without sufficient grounds, you can recover damages from that bond. This requirement raises the cost and stakes for plaintiffs seeking attachment, which discourages frivolous or aggressive use of the remedy. Many plaintiffs find the bonding expense prohibitive, particularly in smaller disputes.
Bond Amount and Calculation
Courts have discretion in setting the bond amount. The bond is not automatically equal to the full attachment sum; courts may reduce it based on the strength of the plaintiff's case and the likelihood of wrongful attachment. If a plaintiff seeks to attach $500,000 in your assets but the underlying claim is for $200,000 and your defense appears strong, the court may set the bond at a lower figure or require the plaintiff to justify the higher attachment amount. This judicial flexibility protects defendants from disproportionate provisional remedies while still allowing legitimate creditors to secure their interests.
3. Asset Exemptions and Protected Property
New York law shields certain categories of property from attachment, regardless of the plaintiff's claim. These exemptions exist as a matter of public policy to ensure that debtors retain the minimum resources necessary for basic living and economic participation. Your primary residence (up to a certain value under the homestead exemption), retirement accounts, life insurance proceeds, and personal property used in your trade or profession may be exempt from attachment. Additionally, wages are subject to strict attachment limitations under federal and state law. Understanding which of your assets fall within these protected categories is essential for developing a defense strategy.
Primary Residence and Homestead Protection
New York grants a homestead exemption that protects equity in your primary residence from attachment and execution. The exemption amount has been increased in recent years and now covers substantial equity. However, the exemption applies only to your primary residence, not investment properties or vacation homes. If you own multiple properties, the plaintiff may still attach non-exempt real estate. This is where disputes most frequently arise: determining whether a property qualifies as a primary residence and calculating the precise equity subject to protection. Documenting your occupancy and intent to reside in the property is critical if attachment is threatened.
4. Strategic Defenses and Early Intervention
If you receive notice of a prejudgment attachment motion, immediate action is necessary. You should retain counsel to file a response opposing the motion, presenting evidence that contradicts the plaintiff's allegations of asset dissipation risk or judgment likelihood. Common defenses include demonstrating that you have substantial assets in New York, that you have no history of concealment, that the underlying claim lacks merit, or that the attachment amount is disproportionate to the claim. From a practitioner's perspective, the window between learning of the attachment motion and the court hearing is narrow; delay can be fatal to your defense.
The Motion to Vacate and Post-Attachment Relief
Even if attachment is initially granted, you retain the right to move to vacate it under CPLR 6223. This motion is appropriate if circumstances have changed, if the plaintiff has failed to maintain the bond, or if new evidence demonstrates that attachment was improper. Additionally, if you post your own undertaking (bond) in an amount set by the court, you may be able to dissolve the attachment and free your assets. The court retains ongoing jurisdiction to modify or lift the attachment as facts evolve. Many defendants successfully vacate attachment orders by demonstrating that the original grounds no longer exist or were never adequately proven.
5. Practical Steps and Long-Term Planning
Defendants facing potential prejudgment attachment should take several concrete steps. First, consult with an attorney immediately upon learning of a threatened or filed attachment motion. Second, gather documentation of your assets, liabilities, and financial condition to demonstrate stability and lack of dissipation risk. Third, review your asset structure to identify which property may be exempt or less vulnerable. Fourth, consider whether settlement discussions might resolve the underlying dispute before attachment becomes necessary. Finally, if attachment does occur, work with counsel to pursue immediate relief through motions to vacate or modify.
For more detailed guidance on protecting your assets in litigation, consult our practice area on prejudgment attachment. The intersection of provisional remedies, asset protection, and litigation strategy requires careful analysis tailored to your specific financial circumstances and the nature of the underlying claim. Early consultation with experienced counsel can often prevent attachment or minimize its scope before it disrupts your business or personal finances.
14 Jan, 2026
