New York Laws
Article 13-A - Proceeds of a Crime-Forfeiture
1312 - Provisional Remedies; Generally.

§ 1312. Provisional remedies; generally. 1. The provisional remedies
of attachment, injunction, receivership and notice of pendency provided
for herein, shall be available in all actions to recover property under
this article.

2. On a motion for a provisional remedy, the claiming authority shall
state whether any other provisional remedy has previously been sought in
the same action against the same defendant. The court may require the
claiming authority to elect between those remedies to which it would
otherwise be entitled.

3. A court may grant an application for a provisional remedy when it
determines that: (a) there is a substantial probability that the
claiming authority will be able to demonstrate at trial that the
property is the proceeds, substituted proceeds, instrumentality of the
crime or real property instrumentality of the crime, that the claiming
authority will prevail on the issue of forfeiture, and that failure to
enter the order may result in the property being destroyed, removed from
the jurisdiction of the court, or otherwise be unavailable for
forfeiture; (b) the need to preserve the availability of the property
through the entry of the requested order outweighs the hardship on any
party against whom the order may operate; and (c) in an action relating
to real property, that entry of the requested order will not
substantially diminish, impair, or terminate the lawful property
interest in such real property of any person or persons other than the
defendant or defendants.

4. Upon motion of any party against whom a provisional remedy granted
pursuant to this article is in effect, the court may issue an order
modifying or vacating such provisional remedy if necessary to permit the
moving party to obtain funds for the payment of reasonable living
expenses, other costs or expenses related to the maintenance, operation,
or preservation of property which is the subject of any such provisional
remedy or reasonable and bona fide attorneys' fees and expenses for the
representation of the defendant in the forfeiture proceeding or in a
related criminal matter relating thereto, payment for which is not
otherwise available from assets of the defendant which are not subject
to such provisional remedy. Any such motion shall be supported by an
affidavit establishing the unavailability of other assets of the moving
party which are not the subject of such provisional remedy for payment
of such expenses or fees. That funds sought to be released under this
subdivision are alleged to be the proceeds, substituted proceeds,
instrumentality of a crime or real property instrumentality of a crime
shall not be a factor for the court in considering and determining a
motion made pursuant to this subdivision.

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