STATE OF NEW YORK
       ________________________________________________________________________
 
                                         5203
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                      May 1, 2001
                                      ___________
 
       Introduced  by  Sen.  VOLKER  -- (at request of the Attorney General) --
         read twice and ordered printed, and when printed to  be  committed  to
         the Committee on Codes
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         grounds for the issuance of a temporary restraining order in  a  civil
         forfeiture action for the proceeds of a crime
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Section 1333 of the civil practice law and rules, as  added
    2  by chapter 669 of the laws of 1984, is amended to read as follows:
    3    §  1333.  Grounds for preliminary injunction and temporary restraining
    4  order. A preliminary injunction may be granted in any action under  this
    5  article,  whether  for money damages or otherwise, where it appears that
    6  the defendant threatens or is about to do, or is doing or  procuring  or
    7  suffering  to  be  done, an act in violation of the claiming authority's
    8  rights respecting the subject of the  action,  and  thereby  tending  to
    9  render  a  resulting judgment ineffectual. A temporary restraining order
   10  may be granted pending a hearing for a preliminary injunction  where  it
   11  appears that immediate and irreparable injury, loss or damage [will] may
   12  result unless the defendant is restrained before the hearing can be had.
   13  A  preliminary injunction may be granted only upon notice to the defend-
   14  ant. Notice of the motion may be served with the summons or at any  time
   15  thereafter and prior to judgment.
   16    § 2. This act shall take effect immediately.
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09160-01-1

 
BILL NUMBER: S5203
 
SPONSOR: VOLKER

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the grounds for the issuance of a temporary restraining
order in a civil forfeiture action for the proceeds of a crime
 
 
PURPOSE:  This bill conforms the burden of proof required to obtain a
temporary restraining order in a civil forfeiture action to the lesser
burden of proof required for provisional remedies in forfeiture actions
under CPLR § 1312(3).
 
 
SUMMARY OF PROVISIONS:  This bill amends § 1333 of the Civil Practice
Law and Rules (CPLR), to provide that a temporary restraining order may
be obtained upon a showing that immediate and irreparable injury "may"
result unless the defendant is restrained before the hearing, instead of
the current requirement of showing that such injury "will" occur.
 
 
JUSTIFICATION:  The current wording of CPLR § 1333 is inconsistent
with the wording of CPLR § 1312(3), which provides that in a forfeiture
action a court may grant an application for the provisional remedies of
attachment, injunction, receivership and notice of pendency upon a show-
ing that failure to enter the order  
MAY result in the property being
destroyed, removed from the jurisdiction or otherwise rendered unavail-
able for forfeiture. This is the appropriate burden of proof, and the
same standard therefore should be applied to requests for temporary
restraining orders in forfeiture actions.
 
This bill corrects this inconsistency by amending CPLR § 1333 to estab-
lish the same burden of proof as CPLR § 1312(3). By their very nature,
the institution of forfeiture actions create a significant risk that the
subject property may disappear or be destroyed. By amending CPLR § 1333,
this bill will enable claiming authorities to place a preemptive freeze
on the illegal proceeds of criminal activity in an effort to prevent
their removal, thereby preserving those assets for forfeiture.
 
 
PRIOR LEGISLATIVE HISTORY:  This proposal was introduced as S.4849
during the 1999-00 legislative session.
 
 
FISCAL IMPLICATIONS:  Property which is preserved for forfeiture will,
upon successful conclusion of a forfeiture case, be distributed to vari-
ous state and local governmental agencies.
 
 
EFFECTIVE DATE:  This act takes effect immediately upon enactment.