N.Y. Civil Practice Law & Rules § 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.