How Prejudgment Attachment Works in New York Commercial Cases Under CPLR § 6201

You sued a Long Island distributor for $2.5 million in unpaid invoices. Your investigator tells you he's moving money to a Florida account and has quietly listed his Suffolk County warehouse for sale. By the time you get a judgment eighteen months from now, there may be nothing left to collect. This is exactly the problem prejudgment attachment in New York was designed to solve — and it's one of the most underused tools in commercial litigation.

At Yassi Law PC, we handle seven-figure commercial disputes across the five boroughs, Nassau County, and Suffolk County. When a defendant looks like a flight risk or is visibly dissipating assets, an attachment order can change the entire trajectory of the case. Here's how the process works, what you have to prove, and where most litigants trip up.

What is prejudgment attachment in New York?

Prejudgment attachment in New York is a court-ordered seizure of a defendant's assets before trial to secure a potential money judgment. Instead of waiting years to win your case and then trying to chase down assets, you lock them down at the front end. The sheriff levies on bank accounts, accounts receivable, real estate, or other property, and the defendant can't touch it without court permission.

The remedy is governed by Article 62 of the CPLR, with the core statute being CPLR § 6201. Attachment is extraordinary — courts don't grant it casually. But when the statutory grounds are met, it's a powerful pressure point that often pushes defendants toward serious settlement discussions within weeks rather than years.

Attachment is different from a preliminary injunction. An injunction orders someone to do or stop doing something. Attachment physically ties up property. You can sometimes get both, and in fraud or trade-secret cases, our firm occasionally pursues them in parallel. If you want a deeper look at the injunction side, our guide to preliminary injunctions and TROs in New York walks through that remedy in detail.

When can you get prejudgment attachment in New York under CPLR § 6201?

You can get prejudgment attachment in New York only when your case fits one of the specific grounds listed in CPLR § 6201, and only in actions seeking a money judgment. The statute is narrow by design. New York courts have long treated attachment as a harsh remedy to be strictly construed against the party seeking it.

The two most commonly invoked grounds in commercial cases are straightforward. First, the defendant is a nonresident of New York or a foreign corporation not qualified to do business here. Second, the defendant has assigned, disposed of, encumbered, or secreted property — or is about to — with intent to defraud creditors or frustrate enforcement of a judgment. A third, narrower ground covers actions based on a judgment entitled to full faith and credit in New York, which is useful when you're trying to enforce an out-of-state judgment against assets located here.

The nonresident ground sounds easy, but it isn't automatic. Courts want to see that attachment is genuinely needed for security, not just that the defendant happens to live in New Jersey. If the out-of-state defendant has substantial New York assets or a clear New York presence, a judge may deny attachment because you don't actually need it. The dissipation ground is harder still — you have to show intent to defraud, not just that the defendant is spending money or selling things in the ordinary course of business.

The Commercial Division routinely handles attachment applications in complex business cases, and commercial judges tend to apply the statute with a trained eye. If your case is venued there, you'll generally get a faster and more sophisticated hearing than in a general IAS part.

What do you have to prove to win a prejudgment attachment order?

To win a prejudgment attachment in New York, you must satisfy all four requirements in CPLR § 6212(a). The burden is entirely on you as the moving party, and the evidentiary showing has to be concrete — not just allegations lifted from your complaint.

First, you must show a cause of action under one of the CPLR § 6201 grounds. Second, you must demonstrate a probability of success on the merits of your underlying claim. Third, you must show that the amount demanded from the defendant exceeds all counterclaims known to you. Fourth, you must post an undertaking to indemnify the defendant if the attachment is later found to be wrongful.

The probability-of-success standard is meaningful. Courts want to see documents, affidavits from witnesses with personal knowledge, and admissible evidence — not hearsay or conclusory assertions. In a breach-of-contract case, that typically means the contract, the invoices, the demand letters, and sworn testimony explaining the default. In a fraud case, you need particularized facts satisfying CPLR § 3016(b), which requires the circumstances of fraud to be stated in detail.

The undertaking is often misunderstood. Under CPLR § 6212(b), the bond must be for a sum fixed by the court and not less than $500. In multi-million-dollar commercial cases, courts routinely set undertakings at substantial amounts — sometimes more. If you lose the case or the attachment is vacated, the defendant can recover damages up to the undertaking amount for any loss caused by the wrongful attachment. That risk is real, which is why you should pursue attachment only when the evidence is strong and the collection threat is serious.

How does the ex parte prejudgment attachment process actually work?

The prejudgment attachment process in New York usually starts with an ex parte application — meaning without notice to the defendant — under CPLR § 6211. The entire point is surprise. If the defendant knew you were coming, the assets you're trying to attach would be on a plane to Delaware before the sheriff arrived.

Here's how the sequence typically unfolds in a seven-figure case:

• You file a summons and complaint (or order to show cause) in Supreme Court, usually with a motion for attachment supported by affidavits, the contract or operative documents, and a proposed order.

• The judge reviews the papers in chambers, and if persuaded, signs the ex parte order of attachment. In urgent situations, you can also request a temporary restraining order under CPLR § 6210 to hold the status quo pending levy.

• You deliver the signed order and your undertaking to the sheriff's office in the county where the assets sit. The sheriff then levies — serving banks, garnishees, or posting notice on real property.

• Within five days after levy, you must move to confirm the order of attachment on notice to the defendant, per CPLR § 6211(b). Miss this deadline and the attachment falls apart.

• At the confirmation hearing, the defendant finally gets to respond and may move to vacate under CPLR § 6223.

The five-day confirmation deadline is where inexperienced counsel lose cases. Most litigants miss that the clock runs from the date of levy, not the date the order was signed, and that a single missed day can unwind weeks of planning. Experienced commercial litigators calendar the confirm-motion deadline the instant the sheriff reports the levy.

If the defendant moves to vacate and wins, the attachment is dissolved and the levy is released. If you win, the assets stay frozen through trial. Either way, you've forced the defendant to show up, respond substantively, and disclose information about the assets at stake — often for the first time in the case.

What mistakes should you avoid when seeking prejudgment attachment in New York?

The biggest mistake in seeking prejudgment attachment in New York is treating it as a collection threat rather than a carefully supported legal remedy. Judges see a lot of weak attachment applications, and a denied attachment telegraphs weakness to the defendant for the rest of the case.

The most common errors we see in other lawyers' work fall into a few buckets. Thin evidence of fraudulent intent is the top problem. Saying "the defendant is moving assets" is not enough — you need specifics, like a recorded deed transfer, wire transfers to foreign accounts, emails discussing asset relocation, or testimony from a former employee. Courts reject applications that rely on suspicion dressed up as fact.

Undervaluing the undertaking is another pitfall. If you low-ball the bond amount, the court may either increase it sharply or deny the application outright. A serious attachment in a multi-million-dollar case often requires a substantial bond, and bonding companies want collateral. Budget for this before you file.

Overbreadth kills applications too. If you seek attachment of "all assets" without targeting specific property, judges get nervous and either pare down the order or deny it. Target the bank accounts, receivables, or real estate you actually have evidence exist. According to the New York Department of State's Division of Corporations, entity records and UCC filings are publicly searchable — use them before you file, not after.

Finally, don't forget that attachment is not available in every kind of case. It's a money-judgment remedy. If your claim is primarily for an injunction, specific performance, or an equitable accounting, attachment isn't the right tool. Our overview of common commercial litigation cases in New York discusses when each remedy fits, and a seasoned litigator will pick the tool that matches your claim. If your dispute is likely headed to arbitration, a different playbook applies — our guide to selecting an arbitrator in AAA commercial disputes walks through that forum.

Strategic timing also matters. If your case is strong enough for attachment, it's often strong enough for an early summary judgment motion under CPLR § 3212. Pairing the attachment pressure with a dispositive motion can accelerate settlement dramatically. In some cases we've seen defendants come to the table within 30 days of levy — far faster than the typical 12-to-24 month commercial case timeline.

How much does it cost to get a prejudgment attachment?

The biggest cost is the undertaking, which in a seven-figure case often ranges from the low tens of thousands to well over $100,000 depending on the value of the assets attached and the judge's risk assessment. Add legal fees for the motion papers, affidavits, and confirmation hearing, plus the sheriff's levy fees. For a serious commercial case, total out-of-pocket costs commonly land in the $25,000–$75,000 range before you account for attorney time.

Can prejudgment attachment replace a preliminary injunction?

No. Attachment and injunctions do different things. Attachment freezes assets to secure a future money judgment. A preliminary injunction orders conduct — for example, stopping a former employee from soliciting your clients or using your trade secrets. In fraud cases, trade secret cases, and partnership disputes, we often pursue both remedies in parallel because each protects a different interest.

What happens if the prejudgment attachment is wrongly granted?

If the attachment is vacated or the plaintiff ultimately loses the case, the defendant can recover damages caused by the wrongful attachment — including lost business, interest on frozen funds, and attorney fees — up to the amount of the undertaking posted under CPLR § 6212(e). That's why the undertaking is not a formality. It's real money at risk, and why only strong cases belong in attachment territory.

Does prejudgment attachment work against out-of-state defendants?

Yes, and in fact the nonresident ground under CPLR § 6201(1) is one of the most frequently used bases for attachment. But you can only attach property located in New York. If the defendant is a New Jersey company with no New York assets, a New York attachment won't help you — you'd need to pursue equivalent remedies in the state where the assets actually sit.

The bottom line on prejudgment attachment in New York

Prejudgment attachment in New York is a powerful but demanding remedy. It can transform a collection nightmare into an early settlement, but only when the evidence is solid, the grounds are clear, and the procedural deadlines are hit precisely. In the $1 million to $10 million commercial cases we handle, attachment is often the difference between a paper judgment and a real recovery.

If your business is facing a commercial dispute where the other side looks like a flight risk or is dissipating assets, the team at Yassi Law PC is ready to help. Call us today at 646-992-2138 for a consultation.

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Written by Reza Yassi | LinkedIn

This article is for informational purposes only and does not constitute legal advice. Although I am an attorney, I am not your attorney, and reading this article does not create an attorney-client relationship. Laws vary by jurisdiction and may have changed since the publication of this article. For advice specific to your situation, consult a qualified attorney.