S T A T E O F N E W Y O R K
________________________________________________________________________
7676
2021-2022 Regular Sessions
I N A S S E M B L Y
May 19, 2021
___________
Introduced by M. of A. LAVINE -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the civil practice law and rules, in relation to creat-
ing a procedure for serving process and a notice of ex parte attach-
ment following issuance of a pre-summons ex parte order of attachment
when the defendant must be served in a foreign country
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 6211 of the civil practice law and rules is amended
by adding a new subdivision (c) to read as follows:
(C) NOTICE OF ATTACHMENT TO DEFENDANT IN A FOREIGN COUNTRY. NOTWITH-
STANDING SUBDIVISION (B) OF THIS SECTION, IF A DEFENDANT AGAINST WHOM AN
ORDER OF ATTACHMENT WITHOUT NOTICE CAN BE EFFECTIVELY SERVED WITH THE
SUMMONS ONLY IN A FOREIGN COUNTRY, AND SUCH DEFENDANT HAS NOT YET BEEN
SERVED WITH THE SUMMONS, THE PLAINTIFF MAY SERVE SUCH DEFENDANT IN
ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION. NO LATER THAN FIVE
DAYS AFTER LEVY, THE PLAINTIFF SHALL SERVE UPON SUCH DEFENDANT A NOTICE
OF EX PARTE ATTACHMENT, BY ANY MODE OF MAIL OR COURIER SERVICE CALCU-
LATED TO BE DELIVERED WITHIN THREE BUSINESS DAYS, IF FEASIBLE, OTHERWISE
AS SOON THEREAFTER AS POSSIBLE, WITH ANY FORM OF RETURN RECEIPT
REQUESTED PROVIDED BY THE MAIL OR COURIER SERVICE. SUCH PLAINTIFF SHALL
EXECUTE A PROOF OF SERVICE OF SUCH NOTICE OF EX PARTE ATTACHMENT AND
LEVY, WHICH SHALL INCLUDE THE RETURN RECEIPT OR A STATEMENT THAT RECEIPT
WAS REFUSED.
SUCH NOTICE OF EX PARTE ATTACHMENT SHALL BE IN SUBSTANTIALLY THE
FOLLOWING FORM AND CONTAIN THE INDICATED DECLARATIONS:
NOTICE OF EX PARTE ATTACHMENT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09654-01-1
A. 7676 2
ON OR ABOUT _______________, A SHERIFF OF THE STATE OF NEW YORK, COUN-
TY OF ____________ ___________, LEVIED UPON PROPERTY IN WHICH YOU HAVE
AN INTEREST, PURSUANT TO AN ORDER OF ATTACHMENT SIGNED (DATE) BY
______(IDENTIFY NAME AND ADDRESS OF COURT)________________IN AN ACTION
ENTITLED ________________________________, AND WITH THE INDEX NUMBER
___. A COPY OF THE COURT'S ORDER IS ENCLOSED, TOGETHER WITH THE PAPERS
UPON WHICH THE ORDER WAS BASED.
YOU MAY MAKE A MOTION WITHIN TEN DAYS OF RECEIPT OF THIS NOTICE FOR AN
ORDER PURSUANT TO SECTION 6223 OF THE NEW YORK CIVIL PRACTICE LAW AND
RULES (CPLR) TO VACATE THE ORDER OF ATTACHMENT IF YOU BELIEVE THE ORDER
WAS NOT PROPERLY ISSUED. SUCH MOTION TO VACATE SHALL BE MADE BY ORDER TO
SHOW CAUSE AND THE COURT SHALL SET THE HEARING ON THE MOTION AT THE
EARLIEST POSSIBLE TIME. UPON THE HEARING, THE PLAINTIFF(S) SHALL HAVE
THE BURDEN OF ESTABLISHING THE GROUNDS FOR THE ATTACHMENT, THE NEED FOR
CONTINUING THE LEVY AND THE PROBABILITY THAT THE PLAINTIFF(S) WILL
SUCCEED ON THE MERITS OF THE ACTION.
YOUR MAKING OF THE FOREGOING MOTION TO VACATE THE ORDER OF ATTACHMENT
AND PARTICIPATING IN THE HEARING THEREOF SHALL NOT, BY THEMSELVES,
SUBJECT YOU TO THE COURT'S JURISDICTION ON ANY MATTER OTHER THAN THE
ADJUDICATION OF THE MOTION AND ANY APPEAL THEREOF. YOUR FAILURE TO MAKE
THE MOTION DOES NOT WAIVE ANY OTHER REMEDIES YOU MAY HAVE UNDER CPLR
ARTICLE 62 OR ANY OTHER PROVISION OF LAW.
THIS NOTICE OF EX PARTE ATTACHMENT DOES NOT CONSTITUTE THE SERVICE OF
PROCESS OR OTHERWISE AUTHORIZE THE COURT TO ADJUDICATE THE MERITS OF THE
ACTION.
DATED AT_____________, NEW YORK, THIS ______ DAY OF ________,
_______________________________
SIGNED NAME OF PLAINTIFF'S ATTORNEY
PRINTED NAME OF ATTORNEY
FIRM NAME
STREET ADDRESS
CITY, STATE, ZIP CODE
TELEPHONE:
EMAIL ADDRESS:
FACSIMILE:
ATTORNEY(S) FOR PLAINTIFF(S) (PARTY NAMES)
§ 2. Section 6213 of the civil practice law and rules, as amended by
chapter 216 of the laws of 1992, is amended to read as follows:
§ 6213. Service of summons. An order of attachment granted before
service is made on the defendant against whom the attachment is granted
is valid only if, within sixty days after the order is granted, a
summons is served upon the defendant or first publication of the summons
against the defendant is made pursuant to an order and publication is
subsequently completed, except that a person upon whom the order of
attachment is served shall not be liable for acting upon it as if it
were valid without knowledge of the invalidity. If the defendant dies
within sixty days after the order is granted and before the summons is
served upon him or publication is completed, the order is valid only if
the summons is served upon his executor or administrator within sixty
days after letters are issued. Upon such terms as may be just and upon
good cause shown the court may extend the time, not exceeding sixty
days, within which the summons must be served or publication commenced
pursuant to this section, provided that the application for extension is
made before the expiration of the time fixed. NOTWITHSTANDING THE FORE-
GOING TIME PERIODS, WHEN SERVICE OF THE SUMMONS MUST BE MADE IN A
A. 7676 3
FOREIGN COUNTRY, THE TIME WITHIN WHICH THE SUMMONS MUST BE SERVED SHALL
BE ONE HUNDRED TWENTY DAYS FROM THE DATE THE ACTION IS COMMENCED OR THE
DATE THE ORDER OF ATTACHMENT IS GRANTED, WHICHEVER IS EARLIER, EXCEPT
THAT THE COURT MAY EXTEND THE TIME FOR SERVICE FOR GOOD CAUSE SHOWN
EITHER BEFORE OR AFTER THE EXPIRATION OF THE ONE HUNDRED TWENTY DAY
PERIOD. SUBSEQUENT EXTENSIONS MAY BE GRANTED FOR GOOD CAUSE SHOWN.
§ 3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.