(a) Generally. Damages for wrongful taking or detention or for injury to or depreciation of a chattel may be awarded to a party. If an order of seizure granted without notice is not confirmed as required pursuant to paragraph four of subdivision (d) of section 7102, the plaintiff, unless the court orders otherwise upon good cause shown, shall be liable to the defendant for all costs and damages, including reasonable attorney’s fees, which may be sustained by reason of the granting of the order of seizure without notice, and the plaintiff’s liability shall not be limited to the amount of the undertaking. Except as provided in subdivision (b), judgment shall award possession of each chattel to the prevailing party or, if the action is discontinued or dismissed, to the person from whom it was seized; and where the person awarded possession is not in possession when judgment is entered, it shall in the alternative, award the value of each chattel at the time of trial or the sum for which it was sold under section 7105, decreased by the value of the interest of an unsuccessful party.
§ 7108.Judgment; execution in certain cases; enforcement by contempt.
Article 71. Recovery of Chattel · Last amended 1979 · Last verified July 21, 2026
In one sentenceCPLR 7108 tells a court how to frame judgment in an Article 71 action, awarding possession to the winner along with an alternative money award if that party lacks possession, damages for wrongful taking or detention, and special valuation rules for security-interest and distress cases.
Full Text of CPLR 7108
(b) Where value of chattel should not be awarded; execution. A verdict, report or decision in favor of the defendant where the chattel is in possession of the plaintiff at the time it is rendered shall not fix the value of the chattel where:
1. the plaintiff is the owner of the chattel but it was rightfully distrained doing damage, and the value of the chattel is greater than the damages sustained by the defendant; or 2. the plaintiff is the owner of the chattel, but the defendant had a special property therein, the value of which is less than the value of the chattel. The verdict, report or decision shall state why the value of the chattel is not fixed, and the final judgment shall award to the defendant the amount of damages or value of his special property and, if such sum is not collected, possession of the chattel. An execution shall direct the sheriff to deliver possession of the chattel to the defendant unless the party in possession pays the sum awarded to the defendant with interest and sheriff’s fees and in case the chattel cannot be found within his county, then to satisfy that sum from the property of the party against whom the judgment is entered. If the chattel is in possession of the defendant, it may remain in his possession until the amount awarded is paid.
(c) Failure of jury to fix sum. If the jury shall fail to fix any sum required to be fixed by this section, such sum shall be fixed by a jury empaneled for the purpose upon motion made before the judge who presided at the trial within fifteen days after verdict.
Plain-English Summary
Subdivision (a) sets the general rule. The court can award damages for a wrongful taking or detention of the chattel, or for injury or depreciation while it was held. If a plaintiff obtained an order of seizure without notice and then failed to get it confirmed as section 7102 requires, the plaintiff — unless the court orders otherwise upon good cause shown — is liable to the defendant for all costs and damages, including reasonable attorney's fees, sustained by reason of the without-notice seizure, and that liability is not capped at the amount of the undertaking. The judgment itself awards possession of each chattel to the party who prevails, or, if the action is discontinued or dismissed, back to whoever the chattel was seized from — and when the winning party has not recovered possession by the time judgment is entered, the judgment adds an alternative award of the chattel's value at trial, or the sale proceeds if it was sold as perishable property, reduced by the value of whatever interest the losing party held.
Subdivision (b) carves out two situations where the court cannot fix the chattel's value against a plaintiff who still has possession of it, even though the defendant won. The first is when the plaintiff owns the chattel, but the chattel was rightfully distrained — lawfully seized by the defendant — while it was doing damage, and the chattel is worth more than the damage it caused. The second is when the plaintiff owns the chattel but the defendant holds a security interest in it worth less than the chattel itself. In either case, the verdict has to explain why the chattel's value was not fixed, and the judgment instead awards the defendant the damages or the value of the defendant's interest. The execution that follows directs the sheriff to take back possession unless the party holding the chattel pays that sum, with interest and the sheriff's fees, and if the chattel cannot be found in the sheriff's county, execution proceeds against the paying party's other property instead. If the defendant already has the chattel, the defendant keeps it until the awarded sum is paid.
Subdivision (c) handles a jury that returns a verdict without fixing a sum the statute requires. Either side can move, within fifteen days after the verdict, to have a new jury empaneled before the same judge who presided at trial for the sole purpose of fixing that figure.
Frequently Asked Questions
What does the judgment in a New York chattel recovery action award?
Possession of the chattel to the prevailing party, plus an alternative money award of its value if that party has not recovered it by the time judgment is entered. The court can also award damages for wrongful taking, detention, or injury to the property.
Can I recover damages in addition to getting my property back?
Yes. CPLR 7108(a) lets the court award damages for wrongful taking or detention, or for injury or depreciation of the chattel while it was in the other party's hands, on top of the award of possession.
What happens if I seized property without notice and then missed the deadline to confirm the order?
Unless the court orders otherwise for good cause, you become liable to the defendant for costs and damages, including reasonable attorney's fees, resulting from the seizure — and that liability is not limited to the amount of your undertaking.
What if the defendant holds a security interest in the chattel that's worth less than the chattel itself?
The court does not fix the chattel's full value against the plaintiff outright. Instead, under subdivision (b), the judgment awards the defendant the value of that security interest, and the execution directs the sheriff to take the chattel unless that sum is paid.
What happens if the jury's verdict doesn't set a dollar value the judgment needs?
Either party can move within fifteen days after the verdict to have a new jury empaneled before the same trial judge solely to fix that sum, under CPLR 7108(c).
Advisory Committee Notes
Subd (a) of this section is derived from CPA §§ 1090, 1118, 1124, the first two sentences of § 1119 and part of §§ 1121 and 1123. The subdivision makes mandatory an award of possession of the chattel to the successful plaintiff, or, in cases other than those specified in subd (b), to the successful defendant if the chattel has been taken from his possession and delivered to the plaintiff before entry of judgment. If the successful defendant is in possession of the chattel when judgment is entered, a dismissal of the action against him is all that is required (Beck v Schneider, 84 Misc 23, 145 NY Supp 1046 (Sup Ct App T 1914)) but the subdivision permits him to obtain a judgment of possession. Unlike CPA § 1123, this subdivision requires no demand for possession by the successful defendant as a prerequisite to a judgment awarding him possession. CPA § 1090 is omitted. It implied that an award of possession of the chattel to the defendant could be either on the merits or not on the merits, and that the unsuccessful plaintiff, in either case, was barred from a subsequent action to recover the chattel, but that he was not barred from pursuing a subsequent action for damages for the wrongful taking or detention. The first sentence of CPA § 1090 in so far as it applied to judgments not on the merits, stated a rule running contrary to general res judicata principles, when read in the light of the second sentence of CPA § 1090, which implied that a final judgment may be a judgment not on the merits. It would seem to have reflected a legislative intent that a plaintiff may be allowed only one attempt to bring an action for specific recovery of the chattel, and if that attempt is dismissed for a defect of form, even where no substantive issues have been determined, plaintiff’s only remedy thereafter would be for damages. This is the interpretation placed on CPA § 1090 by the only case decided thereunder. Adams v Moon, 188 Misc 887, 69 NYS2d 205 (County Ct 1947). No reason appears why a plaintiff with a valid claim for recovery of the chattel should be denied his specific remedy in this manner. Accordingly, it is recommended that the usual rules of res judicata operate in this area, and that a mere dismissal of plaintiff’s complaint for some defect of form as opposed to an award of possession to the defendant on the merits, should not be a bar to a subsequent action to recover possession of the chattel. Such return of the chattel to the defendant is only a determination that plaintiff had not fulfilled the formal requirements to entitle him to possession of the chattel pending the action. The possibility exists that the plaintiff, in an attempt to wrongfully harass, annoy, and obstruct a defendant in lawful possession of the chattel, might pursue a course of continuous seizures of the chattel without good cause. The requirements of an undertaking in twice the value of the chattel and a detailed affidavit are sufficient deterrents to this practice. In addition, where a court finds the seizure to be without good cause, it may dismiss with prejudice, and such a dismissal would be a bar to a subsequent action by plaintiff to recover the same chattel. Section 1118 of the civil practice act spoke of damages to be awarded to the plaintiff, while § 1119 stated that the damages of the prevailing party must be fixed; § 1123 also contemplated that damages can be awarded to either a successful plaintiff or a successful defendant. This subdivision provides that damages occasioned by the wrongful taking or detention of the chattel may be recoverable by “a party.” Since the defendant, originally in possession of the chattel, will merely be defending the action and will not be complaining of a wrongful taking or detention by the plaintiff, he will normally have no occasion to seek damages from the plaintiff except by counterclaim in tort for some previous wrongful detention. Although it is possible that the chattel may depreciate or be damaged after it is taken by the sheriff on the replevy and delivered to the plaintiff, it is within the power of the defendant to obviate this possibility by exercising his statutory right to reclaim the chattel or to move that it be impounded in the hands of the sheriff. Nothing in this provision is intended to affect the defendant’s remedy for tortious damage to his property caused by the negligence of the sheriff or other custodian of the property pendente lite, and these damages should be distinguished from damages for wrongful taking or detention. This subdivision incorporates the provision in CPA § 1119 that the judgment need fix the value of the chattel only where the prevailing party is not in possession of the chattel at the time of judgment, since the purpose of this provision is to award the value of the chattel only where possession of the chattel is unobtainable. In cases where the value of the chattel is fixed by the judgment, if the prevailing party’s interest is less than outright ownership—i.e., the interest of a lienor, mortgagee, or execution creditor—the value fixed by the judgment should nevertheless be the entire value of the chattel, and not merely the value of the interest of the prevailing party in the chattel. 13 Carmody-Wait, Cyclopedia of New York Practice 322 (1954). The prevailing party whose interest in the chattel is thus limited will hold the balance of the value of the chattel, beyond the amount necessary to satisfy his claim, in trust for the true owner. If, however, the unsuccessful party has some interest in the chattel, though inferior to the interest of the prevailing party, the judgment should subtract the value of the unsuccessful party’s interest from the value of the chattel and award the difference to the prevailing party. CPA § 1125 is omitted as unnecessary since its substance is covered by § 5202. CPA § 1121, covering verdict, report or decision for part of several chattels, is omitted as unnecessary. The result which it produced was too obvious to require specific treatment. Where the right to possession of two or more chattels is being litigated, the judgment obviously should award each chattel to the party entitled thereto. And the alternative of the value of the chattel required by these rules should be adjudged to the party to whom each respective chattel is awarded. If possession of the chattels is not or cannot be delivered to the respective successful parties, the judgments for money value should be treated as in the counterclaim situation, deducting the smaller sum from the greater and awarding the balance only. CPA § 1122, covering damage on default, is also omitted. Its substance is covered by § 3215, on default judgments. It should be recognized that in an action to recover a chattel, the plaintiff’s claim is not for a sum certain, even though he has stated the value of the chattel in his affidavit and undertaking. This statement of value is made only to fix the amount in which the undertaking shall be given. Therefore, a default judgment in an action to recover a chattel may be entered only by the court, under § 3215. CPA § 1126 is covered by § 5102.
Subd (b) of this section is derived from CPA § 1120, part of § 1126, and the last sentence of § 1123. No change in former law is intended. The provision is needed because of the right to the use of self-help by persons damaged by animal trespass or by virtue of holding an unsatisfied, overdue lien. The CPA recognized that, in the cases specified in CPA § 1120, the defendant did not desire and was not entitled to a judgment for possession of the chattel. In those cases, the defendant held the chattel only as security for damages which the chattel had caused or for the satisfaction of the defendant’s lien or special property therein. This subdivision incorporates the last sentence of CPA § 1123, with only minor language changes. That sentence provided that the judgment in those specified cases should have awarded only a sum of money to the successful defendant, but if such sum was not paid, the defendant might have retained or might have been granted possession of the chattel as security for the payment thereof. This sentence is a logical adjunct to the provisions of CPA § 1123. The last two sentences of this subdivision are based on the last clause of section 1123 and subd 1 of CPA § 1126.
Subd (c) of this section is derived from the last sentence of CPA § 1119. The time for the motion is based upon § 4405.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1978, ch 81, § 3, eff Jan 1, 1979.
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: replevin judgment New Yorkjudgment for possession or value of chattel New Yorkchattel recovery damages New Yorkalternative judgment property or its value New York