REPLEVIN ACTIONS IN NEW YORK As in the case of the remedy of attachment, we are dealing with a statutory provisional remedy, not a common law remedy of replevin. Once again the court's authority is derived from the statute; and the statute must be carefully followed in order to achieve an effective remedy. In this case we are dealing with CPLR Article 71 entitled Recovery of Chattel. In the case of attachment we sought to "attach" one or more of the debtor's assets, for example a stock certificate, to assure that the asset would be available once the creditor was able to obtain judgment. Attachment may be used with a wide variety of assets, and in most cases we are dealing with property the debtor is entitled to possess. Thus with the attachment remedy the issue is not to determine which party is entitled to possess the subject asset; but to impose a sort of pre-judgment lien on the asset to preserve it until judgment can be entered. By contrast, the creditor seeking to replevy a chattel should already have some ownership claim or lien over the asset. The creditor seeks a judgment of possession which will entitle it to immediate possession of the chattel. Once the creditor obtains the judgment of possession (and the chattel) the remedy of replevin has served its purpose. In some cases the entire action will be concluded once the replevin is complete, since the creditor may not seek or be entitled to seek money damages as in, for example, the case where the underlying indebtedness has been discharged in bankruptcy. Thus the remedy of replevin is used to enforce the creditor's ownership or lien rights in the personal property involved. In many cases the plaintiff is a secured creditor seeking to enforce its rights under the Uniform Commercial Code. In cases where the chattel cannot be peaceably recovered, the creditor should consider the provisional remedy of replevin. The main issue in a replevin application is the right to possession of the subject chattel. Therefore, before moving for an order of seizure, documentary evidence should be assembled to demonstrate the creditor's right to possession. Typically this involves getting a copy of the lease, Certificate of Title, Notice of Lien, or UCC-1 Financing Statement covering the subject chattel. In addition, since the order of seizure should direct the sheriff to where and what is to be seized, it is often crucial to know the exact location of the asset, Page -1- 1997, 2002 THE DEAN LAW FIRM P.C. or at least where it can generally be found. Otherwise the sheriff may be hard pressed to locate the asset; and the time and expense of the replevin application will be wasted. Hence the remedy of replevin should not usually be used to recover a chattel such as a car when the creditor and the "repo" man are unable to locate it. More likely than not, the sheriff will have no better luck, and the creditor will be frustrated. DEFINITION In New York replevin may be defined as a provisional remedy to determine the right to possession of a chattel and deliver possession of that chattel to the party lawfully entitled to have possession. In contrast to the typical common law remedy, an action in New York which includes a demand for the statutory remedy of replevin is not restricted to the issue of possession. The plaintiff may also seek, in the alternative, money damages along with an order of seizure. Also, since the remedy is statutory, the moving party is merely expected to satisfy the statutory criteria, as opposed all the prerequisites for obtaining equitable relief. At the same time the court will expect the moving party to comply with the statutory requirements of CPLR 7102(c) before making the finding required in 7102(d) that it is probable that the plaintiff will succeed on the merits. CPLR 7101 provides when an action seeking replevin may be brought: 7101. When action may be brought. An action under this article may be brought to try the right to possession of a chattel. First note the limitation to chattels. The replevin remedy may not be used as a substitute for a mortgage foreclosure to recover real property. Also although CPLR 7101 seems to imply a singular purpose for such an action, it is typically only one cause of action plead with a cause of action for money damages based upon the same underlying transactions. For example, a secured creditor may seek to replevy the debtor's automobile which is subject to the creditor's security interest, and in the alternative, money damages for breach of the installment contract evidencing the loan used to purchase the car. In such cases the creditor cannot expect a double recovery, so credit for the value of the asset must be given in computing the amount still due on the claim for money damages, or if judgment has already been granted, then the judgment partially satisfied to reflect the value of the asset recovered. Also the secured creditor's actions are likely to be governed by Article 9 of the Uniform Commercial Code. As a result, the creditor should follow the Page -2- 1997, 2002 THE DEAN LAW FIRM P.C. requirements of UCC Article 9 to be sure that it is entitled to entry of judgment for the deficiency remaining after recovery of the chattel. The cautious creditor will liquidate the collateral and apply the net proceeds against the underlying indebtedness before seeking judgment on the money damages cause of action. JURISDICTION In most cases jurisdiction is no different than in other actions and proceedings in New York. Article 3 of the CPLR provides methods for obtaining jurisdiction for this and other actions and proceedings. When the usual methods for obtaining personal jurisdiction are not effective, for example when the debtor is out of state, CPLR 314 which may be used to obtain in rem jurisdiction. That is to say, jurisdiction for the action can be based upon the presence of the chattel in New York even if the party must be served out of state. Note however that such in rem jurisdiction would be limited to the value of the chattel present in New York, so the court exercising such jurisdiction should not also entertain a cause of action for money damages. In addition to having personal or at least in rem jurisdiction over the defendant, the plaintiff must assure that the forum has subject matter jurisdiction over the case. Since the State Supreme Court has general jurisdiction in law and equity (see Judiciary Law 140- b), the Supreme Court will have subject matter jurisdiction to grant the remedy of replevin. In many cases it is less expensive and more expedient to use a lower court. The County Court has subject matter jurisdiction in cases "...to recover one or more chattels the aggregate value of which does not exceed twenty-five thousand dollars...." Judiciary Law 190(3). In many counties the County Court Civil Special Term meets daily and the judges are not individually assigned to cases. As a result the County Court may be much more expedient for a fast moving case such as a replevin, although the same fees generally apply as in Supreme Court (even the fee for filing the RJI form for judicial assignment when no judge is assigned)! The City Courts offer a comparatively inexpensive alternative for replevin of chattels located within the court's territorial jurisdiction and having a value of less than $15,000. See Uniform City Court Act 202. The filing fees are about $200 less in the City Courts, and again the Civil Special Term is often held frequently. Once the order of seizure is granted, the Marshal of City Court should stand ready to seize the chattel. Page -3- 1997, 2002 THE DEAN LAW FIRM P.C. VENUE As with most actions and proceedings in New York, CPLR 503 governs venue; and is based upon the residence of the parties. The language of CPLR 503(a) provides the general rule that the place of trial shall be in the county in which one of the parties resided when the action is commenced. CPLR 503(f) covers consumer credit transactions which shall be in the county of the residence of the defendant. Consequently venue in most cases will follow CPLR 503 based upon residence. CPLR 508 provides an alternative for an action to recover a chattel: 508. Actions to recover a chattel. The place of trial of an action to recover a chattel may be in the county in which any part of the subject of the action is situated at the time of commencement of the action. Note that the language of CPLR 508 is permissive ("may") while the language of CPLR 503 is mandatory ("shall"); and a consumer debtor could have a strong argument for the protection intended by CPLR 503(f). Therefore it appears that an effort should be made to comply with CPLR 503 before resort to the alternative venue allowed under CPLR 508. Under the replevin statute "the court may grant an order directing the sheriff of any county where the chattel is found to seize the chattel". CPLR 7102(d)(emphasis added). As such it is not necessary to commence the action in the county where the chattel is located. Incidentally, as in the case of attachment, sheriffs and courts of other states should not be expected to enforce New York orders of seizure, so the remedy should only be sought when the subject chattel is located in New York. PLEADINGS While the creditor may only be interested in recovering a chattel which it owns, for instance as lessor, or which is encumbered by the creditor's security interest, it is necessary to commence a plenary action in order to recover the chattel through legal process. Keep in mind that replevin is a statutory provisional remedy which must be sought in the context of a legal action or proceeding. The remedy is not available if there is no action pending. Typically the plaintiff wishes to either seize the chattel without notice or restrain the debtor from removing the chattel pending a hearing on the issue of possession. Therefore, Page -4- 1997, 2002 THE DEAN LAW FIRM P.C. the plaintiff is likely seek either an order of seizure without notice or an order to show cause with restraining notice at the beginning of the case. Either way, the plaintiff will be required to purchase an index number and obtain a judicial assignment in State Supreme or County Court actions before obtaining the court order. Once the action is commenced the plaintiff will wish to consider how much notice should be given to the debtor before the chattel is seized. In most cases the creditor will not resort to the remedy of replevin if peaceful repossession is possible. Article 9 of the Uniform Commercial Code allows self-help under most circumstances, and typical security agreements and equipment leases give the secured party or lessor the right to repossess the chattel and the debtor or lessee the obligation to surrender the chattel upon a default in payment. As a result, the creditor or lessor will ordinarily not seek a replevin remedy if the debtor or lessee is cooperative. In years past, the plaintiff could obtain an order of seizure without notice; but in other jurisdictions this practice was found to offend constitutional requirements for due process. This resulted in amendments to the New York replevin statute which still provides for an order of seizure without notice, but now requires a prompt hearing thereafter to protect constitutional rights. The present statute provides as follows: 7102. Seizure of chattel on behalf of plaintiff. (a) Seizure of chattel. When the plaintiff delivers to a sheriff a order of seizure, the papers on which the order was granted, and the undertaking and, if an action to recover a chattel has not been commenced, a summons and complaint bearing the index number and the date of filing with the clerk of the court, he shall seize the chattel in accordance with the provisions of the order and without delay. (b) Service. The sheriff shall serve upon the person from whose possession the chattel is seized a copy of the order of seizure, the papers on which the order was granted, and the undertaking delivered to him by the plaintiff. Unless the order of seizure provides otherwise, the papers delivered to him by the plaintiff, shall be personally served by the sheriff on each defendant not in default in the same manner as a summons or as provided in section 314; if a defendant has appeared he shall be served in the manner provided for service of papers generally. (c) Affidavit. The application for an order of seizure shall be supported by an affidavit which shall clearly identify the chattel to be seized and shall state: l. that the plaintiff is entitled to possession by virtue of facts set forth; 2. that the chattel is wrongfully held by the defendant named; 3. whether an action to recover the chattel has been commenced, the defendants served, whether they are in default, and, if they have appeared, where papers may be served upon them; 4. the value of each chattel or class of chattels claimed, or the aggregate value of all chattels claimed; 5. if the plaintiff seeks the inclusion in the order of seizure of a provision authorizing the sheriff to break open, enter and search for the chattel, the place where the chattel is located and facts sufficient to Page -5- 1997, 2002 THE DEAN LAW FIRM P.C. establish probable cause to believe that the chattel is located at the place; 6. that no defense to the claim is known to the plaintiff; and 7. if the plaintiff seeks an order of seizure without notice, facts sufficient to establish that unless such order is granted without notice, it is probable the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value. (d) Order of seizure. 1. Upon presentation of the affidavit and undertaking and upon finding that it is probable the plaintiff will succeed on the merits and the facts are as stated in the affidavit, the court may grant an order directing the sheriff of any county where the chattel is found to seize the chattel described in the affidavit and including, if the court so directs, a provision that, if the chattel is not delivered to the sheriff, he may break open, enter and search for the chattel in the place specified in the affidavit. The plaintiff shall have the burden of establishing the grounds for the order. 2. Upon a motion for an order of seizure, the court, without notice to the defendant, may grant a temporary restraining order that the chattel shall not be removed from the state if it is a vehicle, aircraft or vessel or, otherwise, from its location, transferred, sold, pledged, assigned or otherwise disposed of or permitted to become subject to a security interest or lien until further order of the court. Unless the court otherwise directs, the restraining order does not prohibit a disposition of the chattel to the plaintiff. Disobedience of the order may be punished as contempt of court. 3. An order as provided in paragraph one of this subdivision may be granted without notice only if, in addition to the other prerequisites for the granting of the order, the court finds that unless such order is granted without notice it is probable the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value. 4. An order of seizure granted without notice shall provide that the plaintiff shall move for an order confirming the order of seizure on such notice to the defendant and sheriff and within such period, not to exceed five days after seizure, as the court shall direct unless the motion is made within such period, the order of seizure shall have no further effect and shall be vacated on motion and any chattel seized thereunder shall be returned forthwith to the defendant. Upon the motion to confirm, the plaintiff shall have the burden of establishing the grounds for confirmation. (e) Undertaking. The undertaking shall be executed by sufficient surety, acceptable to the court. The condition of the undertaking shall be that the surety is bound in a specified amount, not less than twice the value of the chattel stated in the plaintiff's affidavit, for the return of the chattel to any person to whom possession is awarded by the judgment, and for payment of any sum awarded by the judgment against the person giving the undertaking. A person claiming only a lien on or security interest in the chattel may except to the plaintiff's surety. (f) Disposition of chattel by Sheriff. Unless the court orders otherwise, the sheriff shall retain custody of a chattel for a period of ten days after seizure where seizure is pursuant to an order grated on notice, and until served with an order of confirmation where seizure is pursuant to an order granted without notice. At the expiration of such period, the sheriff shall deliver the chattel to the plaintiff if there has not been served upon him a notice of exception to plaintiff's surety, a notice of motion for a impounding or returning order, or the necessary papers to reclaim the chattel. Upon failure of the surety on plaintiff's undertaking to justify, the sheriff shall deliver possession of the chattel to the person from whom it was seized. As in the case of an attachment, the plaintiff may chose to proceed with or without notice. If the order of seizure is obtained without notice under 7102(4), then a hearing Page -6- 1997, 2002 THE DEAN LAW FIRM P.C. must be held within five days after the seizure, and the plaintiff must obtain an order of confirmation as required under (f). Prior to delivering the order of seizure to the sheriff, an undertaking must be filed (see (a)) by a sufficient surety acceptable to the court in a amount fixed by the court of at least twice the value of the chattel. See 7102(e). The undertaking essentially guarantees return of the chattel or payment of damages if the moving party was not entitled to the remedy of replevin or possession of the chattel. All of this tends to multiply the costs and the risks involved when the plaintiff elects to proceed by order of seizure without notice. Many courts prefer to hear both sides of a controversy before granting orders, so very convincing proof will be needed to obtain an ex parte order. The better practice, in the writer's view, is to proceed ex parte only in extreme cases where the chattel is expected to disappear and where it would be difficult to effectively punish the debtor for contempt of court. CPLR 7102(d)(3) expressly provides that an order without notice should be granted only if the court finds that it is probable that the chattel will become unavailable for seizure unless the order is granted. Hence the usual procedure should be to proceed on notice to the debtor. Like the remedy of attachment, a temporary restraining order is available in the case of a replevin. See 7102((d)(2). That provision does not expressly require the posting of an undertaking for the restraint. Obviously the plaintiff wishes to avoid the added expense for another bond; and the debtor may also prefer to avoid another cost which may be taxed against him. Reference should be made to both the replevin statute and Article 63 covering injunctions. CPLR 6313(c) allows the court to require the plaintiff to give an undertaking in its discretion; so the court need not require an undertaking for the temporary restraining order itself. It is often useful to follow the wording of 7102(d)(2) and include reasonable restraining provisions which prevent removal of the chattel, but do not restrict normal use. In other words if the TRO does no more than preserve the status quo until the hearing on the motion for the judgment of possession, then the court will often not require another undertaking for the TRO. The pleadings will typically consist of a Summons and Complaint common to all New York practice. If the creditor is only interested in recovering the subject chattel, as would be the case with in rem jurisdiction, then a single replevin cause of action should suffice. More often, the plaintiff claims the replevin remedy as well as money damages Page -7- 1997, 2002 THE DEAN LAW FIRM P.C. representing the anticipated deficiency and sometimes its attorneys' fees based upon the underlying agreement. If the replevin is futile then the plaintiff may proceed with its claims for money damages. As indicated above, care should be taken to credit the money damage claim with the net proceeds from liquidation of the collateral, preferably before judgment is taken. In addition to the pleadings (which will be filed in accordance with the new commencement-by-filing statute), plaintiff's counsel should prepare a proposed Order to Show Cause (or Order of Seizure without notice if the more drastic approach is justified) with supporting affidavit from the plaintiff. Although it may be sufficient to rely upon an unverified complaint or a complaint verified by counsel pursuant to CPLR 3020(d)(3) along with plaintiff's affidavit to support the proposed order to show cause, the better practice is to have the complaint verified by the plaintiff to assure that the allegations have been checked and the plaintiff has a valid cause of action to commence the replevin action. Once plaintiff counsel has the summons and verified complaint, proposed order to show cause with temporary restraining order and supporting affidavit, and the papers needed to obtain the index number, judicial assignment, and hearing date (and payment to cover the filing fees), the next step is for plaintiff's counsel to file the pleadings and have a copy with the index number date stamped. Then for actions in the County or Supreme Court the request for judicial intervention is filed and in Supreme Court the case is assigned to one of the IAS justices for determination. If the action is brought in one of the City Courts, the procedure is simplified since neither the commencement-by-filing nor the individual assignment system will apply. At the time when the action is commenced the ground work for obtaining the replevin bond should be in place. The statute ( 7102(e)) requires an undertaking of not less than twice the value of the chattel stated in plaintiff's affidavit. Obviously if the chattel is substantial, such as a printing press which was recently the subject of a replevin action valued at $275,000, the bond will also be substantial ($550,000 in the example), and arrangements must be made well in advance to obtain such a bond. Some creditors may not have the resources to qualify for such a bond. As a practice point the plaintiff must keep track of any outstanding replevin bonds. As a rule the bonds remain in effect until the court cancels and discharges them by court order. Such an order discharging replevin bond is often granted upon stipulation once the Page -8- 1997, 2002 THE DEAN LAW FIRM P.C. replevin or voluntary surrender is accomplished. If not, then a motion should be made on notice to discharge the bond. Otherwise the bond stays outstanding, and the plaintiff will keep incurring annual bond premium costs until the bond is discharged. As another practice point, care should be taken by the plaintiff in valuing the subject chattel. If the value is exaggerated then unnecessary bonding expenses will result. If the value is understated, then the plaintiff may find itself seriously under-secured if the debtor files bankruptcy. Also values which are wildly different from the liquidation value may cause the plaintiff problems in establishing a commercially reasonable disposition of the collateral. And of course the plaintiff's affidavit is sworn to under oath. As a procedural matter the plaintiff's affidavit should satisfy the requirements of CPLR 7102(c). If the pleadings and motion papers are in order, the court will usually grant an order to show cause requiring the debtor to appear in person or by counsel at the next available hearing date. If the plaintiff is reasonable about the provisions of the restraining order ("TRO") then the court may, in its discretion, grant the TRO contemplated by 7102(d)(2) without requiring that a TRO bond be filed. See 6313(c). Also at the initial appearance it is useful to discuss the size of the bond which the court will require for the order of seizure. Then the replevin bond may be ordered and ready for the return date of the order to show cause. When the proposed order of seizure is prepared it is useful to provide that the sheriff may break open, enter, and search for the chattel in the place specified in the plaintiff's affidavit as allowed by 7102(d)(2) and 7110: 7110. Sheriff's powers. If the order of seizure so provides, the sheriff, in accordance with the order of seizure, may break open, enter and search for the chattel in the place where the chattel may be and take the chattel into his possession. At the same time, the sheriff should not be expected to break into places without any hope of finding the chattel. It is incumbent upon the plaintiff to have some knowledge of the whereabouts of the chattel and provide the location in its affidavit. See CPLR 7102(c)(5). In cases where it is not feasible for the plaintiff to find the chattel, the statute provides for discovery: 7112. Testimony by deposition to ascertain location of chattel. Page -9- 1997, 2002 THE DEAN LAW FIRM P.C. A party to an action to recover a chattel may move, upon such notice as the court may direct, upon a showing that he lacks knowledge of the location of the chattel or a part thereof, for an order to examine any person for the purpose of obtaining information with reference to such location. The order may be granted before or after service of summons and complaint, or anytime before or after final judgment, and may also restrain the adverse party from acting in violation of whatever rights the moving party may have in the chattel, upon the execution of a reasonable undertaking, with sufficient sureties, to reimburse the adverse party for all damages wrongfully caused by such restraint. The importance of this provision should not be overlooked. If the plaintiff cannot say where the chattel is located, the debtor may be examined. If the plaintiff is unsure of the location then the order should provide for discovery. Of course the availability of discovery should not be used as a justification for commencing an action for replevin where the plaintiff has no idea whether the chattel is available for recovery. By the time plaintiff's counsel conducts discovery the plaintiff has already incurred significant expenses. In some cases it would make more sense to attempt ordinary discovery to ascertain the whereabouts of the chattel before even seeking an order of seizure if the plaintiff cannot determine the whereabouts of the chattel. Once the order to show cause and temporary restraining order are granted and entered, conformed copies should be made and served along with the pleadings within the time allowed by the order to show cause. Note that unless the court requires a TRO bond, no bond is filed to this point. Should the answering papers reveal that the plaintiff is not entitled to possession of the chattel, the plaintiff should be able to cancel the replevin bond, before it is filed, for a substantial refund of the premium. This is sometimes the case where the debtor cannot be served with the papers or where the debtor becomes a debtor- in-bankruptcy before the hearing date. Also it is commonplace for a debtor to realize that there is no defense to the replevin once he or she is served with the order to show cause. When that happens it is often possible to agree upon a voluntary surrender of the chattel. Under these circumstances it should not be necessary to file the undertaking. If the order of seizure is granted before the settlement then a stipulation should be signed memorializing the settlement and also stipulating to an order discharging the replevin bond. OPTIONS FOR OBTAINING POSSESSION Page -10- 1997, 2002 THE DEAN LAW FIRM P.C. As stated above, a voluntary surrender is sometimes possible and often the best way to resolve a replevin. When a voluntary recovery is feasible careful attention must be paid to the terms of the order and to the expectations of the sheriff. As a rule the sheriff will expect to follow through with the statutory procedure once the order of seizure is served by him. The sheriff may also arrange for a voluntary surrender of the chattel to the sheriff. In that case the sheriff will follow the statutory procedure for holding the chattel for ten days (or until the order of confirmation is granted in an ex parte order of seizure). It may be possible to encourage the debtor to surrender the chattel to the sheriff before it becomes necessary for the sheriff to seize it, by making the seizure language of the order of seizure conditional. For example wording such as: Unless the defendant surrenders the subject chattel within five days after service of this order, the sheriff is directed to then seize the chattel... If the sheriff must seize the chattel he will expect the plaintiff to supply the resources to recover the chattel. The seizure of a huge printing press, for example, would involve two eighteen wheelers and a crew of mechanics. Still the sheriff must retain the chattel for ten days (see 7102(f)), so the plaintiff must arrange for the services of a bonded warehouse with facilities to store the huge flatbed trailers loaded with press parts for ten days! By contrast, finding an automotive repossession specialist to assist the sheriff is easy. Of course all of these measures tend to multiply the expense incurred by the plaintiff. During the tens days following the seizure (or before the order of confirmation is granted for an ex parte order) the debtor or any other person claiming the right to possession (except a mere lienholder) may move to reclaim the chattel. CPLR 7103 provides the procedure for reclaiming a chattel. The statute also provides for sale of perishable property by the sheriff: 7105. Sale of perishable property. Upon motion with such notice as the court may require, the court may order the sheriff to sell perishable property which has been seized. The court shall prescribe the time and place of the sale, and the manner and time in which notice thereof shall be given. Unless the court orders otherwise, the sheriff, after deducting his fees and necessary expenses, shall pay the proceeds into court to be held pending determination of the action. Note that perishable property is seldom a good candidate for replevin. By the time the order of seizure is served the property perishable property often disappears. Even if the sheriff seizes some of the perishable property, it could perish before the sale. Hence it Page -11- 1997, 2002 THE DEAN LAW FIRM P.C. may not be practical to replevy perishable property. Also as a practical matter, the sheriff must be able to identify the property covered by the security interest and order of seizure. In the case of fresh turkeys, for example, the sheriff may not know which turkeys came from the secured creditor, and of course the debtor should not be expected to single them out when co-mingled with others from different suppliers. The same problem exists for non-perishable as well as perishable goods; but the nature of the problem comes from the nature of the collateral, not the replevin remedy. In cases where the replevin is wrongful, the debtor may recover the chattel as well as money damages. The statutory provision is 7108: 7108. Judgment; execution in certain cases, enforcement by contempt. (a) Generally. Damages for wrongful taking or detention or for injury to or depreciation of a chattel may be awarded to a party. If an order of seizure granted without notice is not confirmed as required pursuant to paragraph four of subdivision (d) of section 7102, the plaintiff, unless the court orders otherwise upon good cause shown, shall be liable to the defendant for all costs and damages, including reasonable attorney's fees, which may be sustained by reason of the granting of the order of seizure without notice, and the plaintiff's liability shall not be limited to the amount of the undertaking. Except as provided in subdivision (b), judgment shall award possession of each chattel to the prevailing party or, if the action is discontinued or dismissed, to the person from whom it was seized; and where the person awarded possession is not in possession when judgment is entered, it shall in the alternative, award the value of each chattel at the time of trial or the sum for which it was sold under section 7105, decreased by the value of the interest of an unsuccessful party. (b) Where value of chattel should not be awarded; execution. A verdict, report or decision in favor of the defendant where the chattel is in possession of the plaintiff at the time it is rendered shall not fix the value of the chattel where: 1. the plaintiff is the owner of the chattel but it was rightfully distrained doing damage, and the value of the chattel is greater than the damages sustained by the defendant; or 2. the plaintiff is the owner of the chattel, but the defendant had a special property therein, the value of which is less than the value of the chattel. The verdict, report or decision shall state why the value of the chattel is not fixed, and the final judgment shall award to the defendant the amount of damages or value of his special property and, if such sum is not collected, possession of the chattel. An execution shall direct the sheriff to deliver possession of the chattel to the defendant unless the party in possession pays the sum awarded to the defendant with interest and sheriff's fees and in case the chattel cannot be found within his county, then to satisfy that sum from the property of the party against whom the judgment is entered. If the chattel is in possession of the defendant, it may remain in his possession until the amount awarded is paid. (c) Failure of jury to fix sum. If the jury shall fail to fix any sum required to be fixed by this section, such sum shall be fixed by a jury empaneled for the purpose upon motion made before the judge who presided at the trial within fifteen days after verdict. Note that the plaintiff's liability is not limited to the amount of the undertaking, although the surety's liability would be so limited. CPLR 7108(a) provides various Page -12- 1997, 2002 THE DEAN LAW FIRM P.C. alternatives for possession of the chattel depending upon which party is found to be entitled to possession. However the plaintiff should not have to rely upon a favorable decision under 7108 in order to obtain possession. In most cases the plaintiff should include sufficient documentation with its papers to allow a summary determination on the issue of right to possession. In conclusion, the replevin remedy can be an effective remedy to acquire possession of a chattel if the plaintiff can demonstrate its right to possession, where the chattel can be located, and where the liquidation value of chattel or chattels will justify the expenses involved. This outline was prepared for educational and informational purposes only by The Dean Law Firm P.C. of Grand Island, New York, and should not be viewed as furnishing any legal advice. Please give us a call if you have any questions or need further information about filing a Replevin Action in New York. By: Robert A. Dean, Esq. THE DEAN LAW FIRM P.C. 1870 Whitehaven Road Post Office Box 1005 Grand Island, New York 14072 (716) 773-3740 Page -13- 1997, 2002 THE DEAN LAW FIRM P.C.
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