(a) Motion to Vacate or Modify. Prior to the application of property or debt to the satisfaction of a judgment, the defendant, the garnishee or any person having an interest in the property or debt may move, on notice to each party and the sheriff, for an order vacating or modifying the order of attachment. Upon the motion, the court may give the plaintiff a reasonable opportunity to correct any defect. If, after the defendant has appeared in the action, the court determines that the attachment is unnecessary to the security of the plaintiff, it shall vacate the order of attachment. Such a motion shall not of itself constitute an appearance in the action.
§ 6223.Vacating or modifying attachment.
Article 62. Attachment · Last amended 1977 · Last verified July 21, 2026
In one sentenceCPLR 6223 lets the defendant, a garnishee, or anyone with an interest in the property move to vacate or modify an order of attachment, and puts the burden on the plaintiff to justify keeping it in place.
Full Text of CPLR 6223
(b) Burden of Proof. Upon a motion to vacate or modify an order of attachment the plaintiff shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits.
Plain-English Summary
Where CPLR 6222 lets a defendant trade property for a bond without disputing the attachment's validity, CPLR 6223 attacks the order itself. Subdivision (a) lets the defendant, a garnishee, or any other person with an interest in the property or debt move, on notice to every party and the sheriff, to vacate or modify the order of attachment. The court can give the plaintiff a chance to fix a curable defect rather than vacating outright, but if the defendant has already appeared in the action and the court decides the attachment is no longer needed to secure the plaintiff, vacating it becomes mandatory, not discretionary. As with a motion under CPLR 6222, making this motion does not amount to an appearance.
Subdivision (b) places the burden squarely on the plaintiff. On a motion to vacate or modify, the plaintiff has to establish the grounds for the attachment, the continuing need for the levy, and the probability of success on the merits, the same showing CPLR 6212 demanded to obtain the order in the first place. That burden does not shift to the defendant because the order was already granted.
Frequently Asked Questions
Who can move to vacate an order of attachment in New York?
CPLR 6223(a) lets the defendant, a garnishee, or any other person with an interest in the attached property or debt bring the motion.
Who has the burden of proof on a motion to vacate an attachment?
The plaintiff. CPLR 6223(b) requires the plaintiff to establish the grounds for attachment, the continuing need for the levy, and the probability of success on the merits.
Can a court let the plaintiff fix a defect instead of vacating the attachment?
Yes. CPLR 6223(a) allows the court to give the plaintiff a reasonable opportunity to correct a defect before ruling on the motion.
When must a court vacate an attachment even if the plaintiff opposes it?
When the defendant has appeared in the action and the court determines the attachment is no longer necessary to secure the plaintiff, CPLR 6223(a) requires vacating it.
Does moving to vacate an attachment count as appearing in the case?
No. CPLR 6223(a) states that making the motion does not itself constitute an appearance in the action.
Advisory Committee Notes
This section is derived from CPA §§ 822 and 948 through 951. To the extent that the provisions of this section cover a motion to vacate or modify by a person, other than a defendant, claiming an interest in the property, they duplicate the provisions of § 6221. The remedy under this section may be more expedient where the attachment is clearly invalid.
Motions to increase security, which are dealt with in the former sections cited, are treated in § 2508.
The second sentence of this section, derived from former § 822, is intended to overcome the strict interpretation that any defects are “jurisdictional.” Section 3025 providing for liberal construction of pleadings is akin to this section; a similar approach to the plaintiff’s allegation that he has a sufficient cause of action (see rule 6212(a)) is intended. Cf. California Packing Corp. v Kelly Storage and Distributing Co. 228 NY 49, 126 NE 269 (1920).
The defendant’s remedies after an attachment is vacated (former §§ 970 to 972) are covered by § 6225. See also article 25.
The last sentence of this section is intended to permit vacatur of an attachment that was sought solely, or primarily, for jurisdictional reasons, after that function has been served. See notes to § 6201.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1977, ch 860, § 10, eff Sept 1, 1977.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: motion to vacate attachment New Yorkburden of proof vacate attachmentmodifying an order of attachment New Yorkchallenging an attachment order CPLR