New York County - Civil Branch
Ex Parte Applications
EX PARTE APPLICATIONSConcerning: Orders to Show Cause / Infant's and Other Compromise Orders / Ex Parte Applications and Related Applications on Notice (A Detailed Summary of Principal Applications)
All ex parte applications are to be submitted to the Ex Parte Office (Room 315) except in Commercial Division cases, in which the applications should be submitted to the Commercial Division Support Office (Room 148). The following discussion concerns non-Division cases only. Attorneys who submit proposed orders to show cause or ex parte orders in electronically filed cases can save themselves labor and expedite processing of the papers. For information, click here.
A. ORDERS TO SHOW CAUSE
Proposed orders to show cause ("OSC") must be submitted to Room 315 in the first instance. The Ex Parte Office records the proposed OSC in the court’s computer system, as well as the names of the attorneys for the movant and other attorneys, if known, and assigns the case if previously unassigned.
The Ex Parte Office also reviews proposed OSC's for form, in a process similar to the initial examination of motions on notice by the Motion Support Office, prior to fee payment. All ex parte motions must comply with CPLR 2217(b). CPLR 6313(a) precludes the ex parte issuance of a temporary restraining order ("TRO") against a public officer, board, or municipal corporation of the State (which includes New York City) to restrain the performance of statutory duties. If an applicant seeks such relief, advance notice to the Corporation Counsel’s Office, the Office of the Attorney General, or agency counsel if the municipality is so represented is required.
Further, Uniform Rule 202.7 was amended recently to provide for notice except under certain circumstances. Specifically, pursuant to Uniform Rule 202.7 (f), upon an application for an order to show cause that seeks a temporary restraining order, the application must contain an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of such prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the restraining order is sought of the time, date and place that the application will be made sufficient to permit the party an opportunity to appear in response to the application. It is the practice of this court that the applicant must notify the party against whom the restraining order is sought of the time and date that the application will be submitted to the Ex Parte Office. Further, counsel shall advise the adversary that he or she will inform the adversary of the place, date and precise time when the Justice will entertain the application. Once the papers have been submitted to the Ex Parte Office, applying counsel shall contact the Part of the Justice in question to determine when and where it will be convenient for the Justice to entertain the application. Counsel shall then promptly notify the adversary. Counsel shall not appear in the courtroom of the assigned Justice without having first made such an inquiry.
If the papers are satisfactory, staff in Room 315 will mark them so indicating. The attorney seeking to present the proposed OSC shall then proceed to the County Clerk's cashier's office in Room 160, pay the $ 45 fee, receive a cashier's receipt stamp on the OSC, and return to Room 315 to submit it.
A proposed OSC not of an emergency nature is reviewed expeditiously. The clerks will advise the attorney who presents such an OSC of any defects therein. If an OSC cannot be processed within a short time, the presenting attorney should return as instructed or send a clerk to Ex Parte in order to deliver the papers to the assigned Justice. If the proposed OSC requests immediate attention because of an emergency, an affidavit or affirmation is required explaining the nature of the claimed emergency. The Ex Parte Office will attend to the matter immediately and will ask counsel to remain. If oral argument of a motion brought on by OSC is sought, counsel must so indicate on the front of the proposed order. See Rule 202.8(d) of the Uniform Rules for the Trial Courts. Should the proposed OSC be signed, the Justice decides whether argument is appropriate and, if so, will indicate as much in the OSC. If the OSC contains a TRO or oral argument is directed, the motion should be made returnable directly in the IAS Part, usually on the customary argument day. Whether a motion brought on by OSC is made returnable in the Motion Support Office Courtroom (Room 130) or directly in the IAS Part, the movant is responsible for providing proof of service on the return date.
Once the OSC has been signed, the papers must be delivered to the Motion Support Office for further processing to ensure that the OSC appears on the proper motion calendar for the return date just fixed.
During absences of Justices, OSC's are handled by Ex Parte Justices.
Sometimes a party must submit an OSC to a Justice outside of normal court hours. There are two problems that may arise from applications entertained by Justices outside of normal court hours. First, the existence of the application may never be recorded in the court computer. Second, parties may be concerned about the potential risk of judge-shopping. To avoid these problems, all such applications should be made returnable before the assigned Justice or, if there is none, in the Ex Parte Office for random assignment (not before the Justice who signs the OSC unless he or she is the already-assigned Justice). The papers should be delivered to Ex Parte as soon as possible after the application has been signed.
B. INFANT’S, INCOMPETENT’S AND WRONGFUL DEATH COMPROMISE ORDERS
Court approval is required when an action commenced by an infant or an incompetent or an action for wrongful death is settled. The approval will take the form of a compromise order. If an action is pending before the court (an RJI was obtained), the proposed order and accompanying affidavits should be submitted to the Ex Parte Office for review. Upon completion of the review, the Office will forward the papers to the Justice assigned to the case. If an action was commenced but no RJI was filed, the papers should be submitted to the Ex Parte Office along with an RJI so that the matter may be assigned to a Justice. If no action was commenced, an RJI is not required; the papers will be submitted to an Ex Parte Justice through the Ex Parte Office.
C. OTHER EX PARTE APPLICATIONS AND RELATED APPLICATIONS ON NOTICE
Ex parte applications in addition to OSCs are filed in the Ex Parte Office. Depending on their nature, these are either referred to an Ex Parte Justice or entered into the court’s computer and assigned to a Justice except where made in a previously-assigned action, in which event the application will be submitted to the assigned Justice. The following is a detailed summary of key ex parte applications processed by the Ex Parte Office and related applications on notice. (Applications for poor person status involving the self-represented are handled by the Office for the Self-Represented (Room 116)).
Anonymous Caption Order
Bars anyone but the parties and counsel from access to the papers and proceedings in a case and accords the case a caption of "Anonymous v. Anonymous." Should be sought by order to show cause in which the applicant is accorded in a TRO, pending a hearing on the motion, the right to obtain an index number and file an RJI using the Anonymous caption, and access to the file is restricted to the parties, counsel and court personnel.
Attachment, Ex Parte Orders
By order of attachment a party secures identified property against removal or dissipation to provide either security for an eventual money judgment or court jurisdiction over the case premised upon the presence of property in New York. The class of cases in which such an order may be granted is listed in CPLR 6201. The order may be granted ex parte, including before service of a summons. CPLR 6211.
An ex parte order may be sought without the need to file an RJI. The papers must contain a statement that no prior application for the relief in question was made or, if one was, what the new facts are that justify granting the relief now. CPLR 2217(b). The plaintiff must also state whether any other provisional remedy has been sought or obtained in the case. CPLR 6001. If there is any possible doubt about the matter, the applicant must provide a detailed explanation of the jurisdictional nexus to New York. If the matter is brought pursuant to CPLR 6201(1), the moving papers should contain either a certificate as to the foreign and unqualified status of any corporate defendant, or an affirmation of counsel reciting that he or she spoke by phone with a representative of the Secretary of State or the Banking Department where a bank is involved and learned that the defendant is neither a New York corporation nor qualified to do business here, or, if the defendant is an individual, the source of knowledge that the defendant is a nondomiciliary residing without the state.
Further, the moving papers must show that the case is one within CPLR 6201. The papers must contain evidentiary proof of the claims being asserted and that the plaintiff will succeed on the merits; and a showing that the amount demanded exceeds all counterclaims known to plaintiff. The proposed order must specify the amount to be secured by the order of attachment, including interest, costs and sheriff's fees and expenses.
The plaintiff must post an attachment bond, unless other security is adequate. For example, an applicant bank may issue a certified check (payable to the Clerk). Personal checks are not acceptable. The sheriff will levy upon the amount in issue, plus 14%, plus $ 400, to cover interest, poundage fees, and levy fees. The bond should be 5 % of the above total for each defendant, plus 5 % for the sheriff (up to $ 50,000.)
Where an order is obtained ex parte (except one based upon CPLR 6201(1)), it must provide that the applicant, within five days after levy on the property, shall move on such notice as the court shall direct to confirm the attachment. In a case in which the order is based on CPLR 6201(1), a garnishee's statement must be served and the plaintiff shall move within ten days after levy to confirm the order. CPLR 6211.
Attachment, by Motion on Notice
On a motion on notice by order to show cause, the court may grant a TRO without notice prohibiting the transfer of assets by a garnishee (CPLR 6214(b)). The order of attachment must contain the provisions set out in CPLR 6211(a).
The moving papers must satisfy CPLR 6212(a) and provide for an undertaking for the TRO (generally 5% of amount to be restrained).
Commission; Letters Rogatory
Where deposition is sought of an out-of-state witness who may not or will not appear voluntarily, the deposing party must obtain a commission from our court. This is a document formally seeking cooperation of the court system of the other state. It is necessary since an order of the courts of this state may have no force in another jurisdiction. The parties may jointly agree to appoint an officer in the other state who would, if necessary, make an application to compel the testimony. D. Siegel, New York Practice Sec. 360, at 589-90 (4th ed. 2005). The authority in the other state should issue an order there that will bind the witness and require his or her appearance. CPLR 3108. A commission to take testimony on oral questions is sometimes referred to as an "open commission" and one to take testimony on written questions is sometimes referred to as a "sealed commission."
If all parties to the New York action are in accord about the need for the deposition, they should sign a stipulation, in which event the deposing party may proceed ex parte. The deposing party should submit to the Ex Parte Office a proposed order, a proposed commission, the stipulation, and a verified petition or in a pending case an affidavit/affirmation. In the affidavit/ affirmation, the applicant should describe the nature of the action, the name and home or business address of the witness, and the nature of the testimony sought and why it is material and necessary. The papers should contain a statement regarding prior, similar applications (CPLR 2217(b)).
The commission should be signed with the full signature of the Justice (not merely initials) since it is intended to be operative in the other state and should be in a form to pass muster there with the least possible difficulty. In the alternative, the court may direct the County Clerk to issue the commission and the applying party would obtain the commission from the Clerk by presenting the signed order.
The letter rogatory is a similar, somewhat more complex device used to obtain testimony in a foreign country. D. Siegel, supra. A letter is granted on motion or stipulation. If the request is granted, an order is initialed by the court and, as with the commission, the letter is signed with a full signature. The court will not direct the County Clerk to issue and sign the letter inasmuch as that may render the letter ineffective in a foreign jurisdiction expecting to see the signature of a judge on such a document.
Contempt (Civil)
Such a motion must of course be on notice. An order to show cause must contain the statutory warnings that the purpose of the hearing is to punish for contempt, punishment may include imprisonment, and failure to appear may result in arrest and imprisonment. The moving papers must be served on the accused not less than 10 and no more than 30 days prior to the time set for the hearing. The application must comply with CPLR 2217(b) regarding prior, similar applications and state that the contemnor has impeded, impaired, prejudiced and defeated the rights of the applicant. In matrimonial cases, if the application is made with respect to an enforcement procedure under DRL 245, there must also be a statement that payment cannot be enforced by sequestration (DRL 243) or the giving of security, by enforcement of a judgment (DRL 244), or by an income execution or income deduction order for support enforcement. CPLR 5241 and 5242.
Default and Inquest
Upon the default of a defendant, the plaintiff may seek a default money judgment or an inquest ex parte under some circumstances. The plaintiff may apply to the County Clerk for judgment if the sum involved is certain or can by calculation be made certain. CPLR 3215(a). The default must be taken within one year or the court, absent good cause, shall instead dismiss the complaint. CPLR 3215(c). The defendant who appeared in the case is entitled to notice, or, if more than one year has elapsed since the default, even if he or she has not appeared unless the court orders otherwise. CPLR 3215(g)(1). Where an application must be made to the court, a defendant who has failed to appear may serve a written demand for, and is then entitled to, notice of any reference or assessment by a jury. CPLR 3215(g)(2). Additional notice is required when the default judgment based on nonappearance is sought against (i) a natural person in an action based on nonpayment of a contractual obligation, or (ii) a domestic or foreign corporation served pursuant to BCL 306(b). CPLR 3215(g)(3) and (4).
The moving papers must contain a copy of the summons with notice or summons and complaint with Clerk's filing stamp; a factual affidavit by the client or a complaint verified by the client; a detailed affidavit or affirmation as to the default; proof of service with Clerk's stamp; and a statement in compliance with Section 2217(b) regarding prior, similar applications.
If there are multiple defendants, the moving papers must account for all of them. If any has not been summoned, the plaintiff must provide for a severance and disposition with respect to that party (dismissal or discontinuance).
If a motion on notice for a default is granted, the order should provide, where possible, that the Clerk shall enter judgment in favor of plaintiff in the sum of $ X, plus interest (where applicable) from Y date, together with costs and disbursements. If an inquest is required, the order should provide for severance or discontinuance of other parties, and direct the Clerk of the Trial Support Office to assign the action for an inquest and assessment of damages. This directive should be on condition that plaintiff, within a set period (e.g., 60 days), upon pain of dismissal for non-compliance, serve a copy of the order on Trial Support and file a Request for Judicial Intervention (if no Justice has been assigned previously) with a note of issue and pay the proper fees. The statement of readiness is waived.
In a foreclosure matter, the order should provide, in addition to the foregoing, for deleting John Doe defendants and amending the caption and should direct an inquest to compute the amounts due plaintiff on its note and mortgage. It should direct the judicial officer on inquest to report whether the mortgaged premises can be sold in one parcel. The order should determine counsel fees due plaintiff pursuant to the mortgage and provide for the entry of a judgment of foreclosure and sale.
Discharge of Ancient Mortgage
In the case of a mortgage over 20 years old, an application may be made for a discharge pursuant to RPAPL 1931. Any such application must be brought by order to show cause. A verified petition shall set out the name, address and nature of petitioner's interest, a description of the mortgage, and an explanation as to why the mortgage should be discharged. An official search by the Register of the City of New York, an attorney admitted to practice, or a title company incorporated and authorized to transact business in New York must be presented showing the last record holder of the mortgage. The papers must also comply with CPLR 2217(b) regarding prior, similar applications.
Examination Inside New York -- Foreign Action
In response to a commission, letters rogatory or order from another state, a deposition may be taken of a witness in New York, or documents produced from such a witness, and an order of this court may be obtained to ensure this result. CPLR 3102(e). Generally, the order is sought by ex parte application requiring the purchase of an index number but not an RJI. The application must be made by an attorney admitted to practice in New York who has a New York address. The petition for this relief should not use the caption from the underlying case, but rather a caption in the form used in a special proceeding (e.g., "In the Matter of the Application of Washington, Jefferson & Lincoln, P.C., Attorneys at Law, Petitioners, to Take the Deposition on Oral Questions of Aaron Burr, Respondent"). The petition should be supported by an affidavit of New York counsel, a copy of the foreign commission or other process, a proposed order, and a New York subpoena to be served with a copy of the signed order. If a notice of deposition was previously served, a copy should be included. The signing requirement of Section 130-1.1-a of Part 130 must be satisfied. The attorney’s affidavit must state that it is by a New York attorney with a New York address; set forth a basis for the application, including the nature of the action, the name and home or business address of the witness, the nature of the testimony sought and its materiality and necessity; address CPLR 2217(b); and set forth any other information required by any special circumstances. Video taping is allowed only if the commission specifically provides for it. See Uniform Rule 202.15. The order should provide for a place, date and time for the examination or for the production of documents and authorize a subpoena or subpoena duces tecum to be served on the witness. The subpoena must be served together with a copy of the order at least 20 days prior to the examination unless the court orders otherwise. CPLR 3106(b).
Examination Outside the State -- New York Action
See Commission; Letters Rogatory.
Extension of Time
Pursuant to CPLR 2004, the court may extend time periods (not statutory periods of limitation), such as the time within which to answer or move against a complaint. If the time has not yet expired, the motion may be made ex parte. If the time has expired, the motion should be made on notice, and interim relief may be requested. The court now has the power to extend the deadline for effecting service of process. CPLR 306-b.
The moving papers should include a copy of the summons and complaint, and an affirmation/affidavit explaining that the case is not one pursuant to CPLR 3213 and setting forth the pertinent facts about the deadline in question. The papers should make clear whether any previous extensions were granted by stipulation or order and whether any effort was made to obtain an extension on consent. CPLR 2217(b) must be complied with as to prior, similar applications.
Foreclosure
Applications to foreclose may be made ex parte when all defendants have either defaulted or filed notices of appearances and waivers of service of further papers. In other instances, a motion on notice must be made. Where the application may be made ex parte, the procedure is as follows:
1) Application to Appoint Referee
The process begins with an application to appoint a referee to compute the sum due the plaintiff. The applicant must submit an affirmation/affidavit that recites that a notice of pendency was filed and when that was done; that the time for the defendants to appear, answer or move has expired and that no defendant has appeared or answered (except for those who have made limited appearances); and, if that is the case, that the defendants or some of them have admitted the plaintiff's right to foreclose. The moving papers should include a proposed order of reference. The designated referee must be an appointee whose name is taken from the approved fiduciary list or who has superior qualifications (see Part 36 of the Rules of the Chief Judge). The order should direct the referee to compute the amount due and determine whether the premises can be sold in a single parcel. RPAPL 1321. An ex parte application of this sort must be accompanied by the filing of an RJI (unless for some reason the matter had already been assigned, e.g., on a motion for the appointment of a receiver).
2) Motion to Confirm
The report of the referee is normally prepared by the plaintiff's counsel. It must recite the work of the referee (usually including a schedule of the documents examined and relied upon by the referee) and set forth findings of fact and conclusions of law regarding the issues referred, chiefly, the amounts of principal and interest and sums otherwise due. If testimony was taken, the transcript must be annexed to the report unless the parties stipulate to dispense with it. If the referee was appointed by ex parte order in a default situation as explained above, the application to confirm may proceed ex parte as well. In such an instance, the application will include a request for the entry of a judgment of foreclosure and sale, as explained in Item 5 below.
3) Motion to Appoint Receiver
A receiver may be appointed without notice if the mortgage contains a receivership clause. RPL 254. The plaintiff need not show that the property is inadequate security if the mortgage contains such a clause. Such a showing is dispensed with where the mortgage authorizes the appointment of a receiver of the rents and profits and provides that, upon default, rents and profits are assigned or pledged as added security.
The papers in support of the application must state the amount of the monthly rent roll and include a copy of the summons and complaint, the mortgage, note or lien and tax certificate, proof of service, a proposed order for appointment of a receiver, and a Request for Judicial Intervention (if there has not been one already). The court will appoint the receiver, who must be a person on the official fiduciary list or one with better qualifications, and there must be compliance with Parts 26 and 36 of the Rules of the Chief Judge. A bank must be designated by the court to serve as depository for the receiver's accounts.
A receiver must qualify before exercising power. This requires filing an oath and posting an undertaking. CPLR 6402-03. The court order shall specify the amount of the undertaking. As to powers, duties, and responsibilities, see CPLR 5228, RPAPL 1325 and GOL 9-101.
The receiver is entitled to a commission as fixed by the court in an amount not exceeding 5 % of amounts received and dispersed. CPLR 8004(a).
4) Termination of Receivership
The plaintiff may apply ex parte to terminate a receivership. The application must be supported by an affidavit/affirmation justifying the request, the consent of the receiver, and a proposed order, together with compliance with CPLR 2217(b) regarding prior, similar applications. The proposed order should provide that the receivership be terminated, contain a direction that the receiver surrender the premises to the owner, and direct the receiver to settle an account with all appropriate speed or within a fixed deadline.
5) Judgment of Foreclosure
The order and judgment of foreclosure usually is submitted with the ex parte application to confirm the report of the referee to compute. The papers must establish default or consent to the foreclosure. See Default and Inquest above for papers required on a motion for a default judgment.
The proposed order and judgment should be submitted with the papers. It should contain a direction that the premises be sold in the manner set forth in the referee's report and should specify clearly the amount of the plaintiff's lien with interest, costs and extra allowances (CPLR Art. 83). A blank line for costs and disbursements may be left for completion by the Clerk. The order and judgment should clearly identify the mortgagor's interest that is to be sold (fee, etc.) and any superior interests that limit the estate being sold.
The order and judgment appoints a referee to sell, who usually is the referee to compute. If a new person is appointed, there must be compliance with CPLR 4312 and Parts 26 and 36 of the Rules of the Chief Judge. The order and judgment will specify the referee's fee, the place and time of the sale, and where notice will be published. See CPLR 8003(b).
If an answer was served, the plaintiff will have to proceed by motion on notice for summary judgment and the appointment of a referee to compute. This motion is processed through the Motion Support Office (Room 119).
Letter Rogatory: See Commission; Letters Rogatory.
Mechanic's Lien, Discharge of: See Discharge of Mechanic's Lien.
Pro Hac Vice Applications
May be made to the IAS Justice on notice or ex parte. See Section 520.11 of the Rules of the Court of Appeals and Section 602.2(a) of the Rules of the Appellate Division, First Department. The applicant must submit an affirmation describing admission to the bar of some state, the length of time in practice, the location and nature of the practice and disclaiming discipline in another jurisdiction. The applicant must indicate who from the New York bar will be associated in the prosecution or defense of the matter in question. An affirmation of New York counsel must be submitted stating the purpose of the admission and compliance with CPLR 2217(b) regarding prior, similar applications. A proposed order must be submitted that sets forth the purpose of the admission. The application must include a stipulation or consent, or be made on notice.
Security for Costs
May be made ex parte. CPLR 8501. The affirmation or affidavit in support must state that the plaintiff has not been granted permission to proceed as a poor person and is not a petitioner in a habeas corpus proceeding; that the plaintiff is not a domestic or foreign corporation authorized in this state; that plaintiff is not a resident of this state; and that CPLR 8501(b) does not apply (a fiduciary is not in place). The papers must include proof of the plaintiff's non-residency, which may consist of a copy of the summons, proof from the Secretary of State where a corporation is involved, and the like.
The defendant should move on notice to the plaintiff if the amount of security requested is in excess of $ 500 or if the case is listed in CPLR 8501(b).
The papers should include a Request for Judicial Intervention if the case has not previously been assigned and a proposed order which should fix the amount of security, provide a deadline (30 days) for its posting, stay the proceeding as set forth in CPLR 8502, and provide for service on plaintiff within 10 days.
Seizure, Order of
An order to seize a chattel (replevy) may not be made ex parte except where, in addition to the basic prerequisites for such an order, the court finds that, unless such an order is granted without notice, it is probable that the chattel will be transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value. CPLR 7102(d)(3). A detailed affidavit of facts justifying the extraordinary ex parte nature of the relief sought is required (Section 7102(c)(7)), as is, of course, a statement satisfying CPLR 2217(b) regarding prior, similar applications. An order granted ex parte must provide that the plaintiff will move to confirm the seizure on such notice as the court shall direct within no more than five days after seizure. CPLR 7102(d)(4).
An application for an order of seizure must be supported by an affidavit and an undertaking. See Section 7102(c)&(e).
A TRO may be obtained on a motion brought on by OSC preventing the chattel from being removed, sold, assigned, or otherwise encumbered or disposed of. Section 7102(d)(2).
Substituted Service (CPLR 308(5))
A plaintiff may move ex parte for leave to serve a defendant in such manner as the court directs. This relief may be obtained only if service under subdivisions 1, 2 and 4 of Section 308 is impracticable. Courts have broad discretion in ordering methods of service under 308(5) provided that they are reasonably calculated to provide notice.
The method of service proposed by the plaintiff need not be adopted and should not be if it is not reasonably calculated to provide notice. The affidavit in support must show that there is a reasonable chance that the defendant will receive notice of the action. Otherwise, publication may be necessary.
The papers required on an application of this sort include a copy of the summons with notice or summons and complaint, an affidavit/affirmation of past efforts to serve and why alternative service is required, proof of the last known address of the defendant, a proposed order, and compliance with CPLR 2217(b) regarding prior, similar applications.
Substituted Service -- By Publication
A plaintiff may obtain an order ex parte for publication under certain circumstances. CPLR 316. The plaintiff must submit an affirmation/affidavit in support, an affidavit of due diligence by a process server, exhibits demonstrating the results of a search for defendant (Post Office, Surrogate's Court, Board of Elections, Department of Motor Vehicles, military (in the five branches)), notice of publication (see Rule 316(a)), a summons and complaint or summons with notice, a proposed order in compliance with Rule 316, and a Request for Judicial Intervention (if required).
Withdrawal of Funds -- Commissioner of Finance
In connection with certain proceedings in this court, funds are sometimes deposited with the Commissioner of Finance pursuant to court order. An application for release of these funds can be made ex parte if the consent of all persons who have appeared in the action is submitted as part of the application. Otherwise, the applicant should move on notice to all parties.
The applicant should obtain from the Commissioner of Finance proof of the deposit, which is called a Certificate of Deposit. In a pending action an application can be submitted or else the claimant must execute and present a verified, duly acknowledged petition setting forth the facts that substantiate the claim to the funds in question. The petition must be sworn to before a notary public and a copy of the Certificate of Deposit, the application therefor, and the receipt issued by the County Clerk when the funds were originally deposited must be submitted. The claimant must present a proposed order reciting the material submitted and containing a directive to the Commissioner of Finance of the City of New York to pay the claimant, upon service of a certified copy of the order, the sum shown on the Certificate of Deposit, plus accrued interest, less lawful fees. A certified copy of the order may be obtained after filing in the Office of the County Clerk (cost $ 8.00, payable by check to the County Clerk). This copy should be served on the Commissioner of Finance.
August 2007
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