The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a renewed motion for an attachment by the Plaintiffs Samirah and Enung (collectively "the Plaintiffs"). Defendants Varsha Sabhnani and Mahender Sabhnani (collectively "the Defendants") have filed a cross-motion to vacate the proposed attachment under New York Civil Practice Law and Rules ("CPLR") Section 6223. For the reasons discussed below, the Plaintiffs' motion is granted and the Defendants' cross-motion is denied.
The history of the related criminal matter has been extensively chronicled by this Court and the Second Circuit. See United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010); United States v. Sabhnani, 493 F.3d 63 (2d Cir. 2007); United States v. Sabhnani, 539 F. Supp.2d 617 (E.D.N.Y. 2008). Although the Court assumes the parties' familiarity with the underlying facts and procedural history of the criminal matter and this related civil case, a brief review is in order.
The Defendants were convicted, after a jury trial, of two counts each of forced labor in violation of 18 U.S.C. § 1589(a), harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), holding a person in a condition of peonage in violation of 18 U.S.C. § 1581(a), and document servitude in violation of 18 U.S.C. § 1592(a), as well as conspiracy to commit each of these substantive offenses. In June of 2008, the Court sentenced Mahender to 40 months' imprisonment, while Varsha was sentenced to 132 months' imprisonment.
On July 3, 2008, both Defendants appealed their convictions. On October 20, 2008, the Court denied Mahender's motion to remain out on bail pending the resolution of his appeal. However, this order was overturned by the Second Circuit and Mahender was permitted to remain out on bail secured by $2.9 million in cash and a Manhattan apartment owned by the family.
On July 22, 2008, the Plaintiffs commenced the instant civil lawsuit. The Plaintiffs seek money damages under the Trafficking Victims Protection Act, 18 U.S.C. § 1595, federal and state wage laws, and the common law, for violations of their rights. On the same day the complaint was filed, the Plaintiffs also moved for an ex parte order of attachment. After a hearing on September 2, 2008, the Court determined that the Plaintiffs' motion was premature, given that the funds they sought to attach were used to secure Mahender's bail while his appeal was pending.
However, on March 25, 2010, the Second Circuit issued a decision affirming the Defendants' convictions. See Sabhnani, 599 F.3d 215. Mahender surrendered to the Bureau of Prisons on May 24, 2010 to begin serving his sentence. Several days before Mahender's surrender, the Plaintiffs renewed their motion for an attachment. In an order dated May 21, 2010, the Court directed that the money securing Mahender's bail not be exonerated pursuant to Fed. R. Crim. P. 46(g) until the Court recalculated the restitution award in the criminal matter and decided the Plaintiffs' instant motion for an attachment.
A. The Plaintiffs' Motion for an Attachment
FED. R. CIV. P. 64 provides that the remedy of attachment is governed by the law of the state in which a district court sits. Chem. Bank v. Haseotes, 13 F.3d 569, 572 (2d Cir. 1994). Under N.Y. CPLR 6223, "[t]o confirm an order of attachment and defeat a cross-motion to vacate . . . a plaintiff bears the burden of establishing the grounds for the attachment, the need for continuing the levy, and the probability of success on the merits." Bank of China, New York Branch v. NBM L.L.C, 192 F. Supp. 2d 183, 186 (S.D.N.Y. 2002) (citing N.Y. C.P.L.R. §§ 6201, 6212, 6223).
1. Grounds for the Attachment Under N.Y. CPLR 6201
N.Y. CPLR 6201 provides, in relevant part, that a plaintiff seeking money damages may be entitled to an attachment where "the action is brought by the victim . . . of a crime . . . against the person . . . convicted of committing such crime," and the plaintiff "seeks to recover damages sustained as a result of such crime . . ." N.Y. CPLR 6201(4).
Here, the Plaintiffs are victims of the crimes for which the Defendants were convicted and the damages they seek were allegedly sustained as a result of the Defendants' criminal conduct. As such, there is no serious question that the Plaintiffs have ...