Article 52. Enforcement of Money Judgments

ENFORCEMENT OF MONEY JUDGMENTS

The Sections of Article 52 of the New York CPLR.:

CPLR Article 52 New York Enforcement of Money Judgment

Money Judgment in New York

money Article 52 of CPLR Enforcement of Money Judgment money

NY CPLR § 5201. DEBT OR PROPERTY SUBJECT TO ENFORCEMENT; PROPER GARNISHEE

(a) Debt against which a money judgment may be enforced.  A money judgment may be enforced against any debt, which is past due or which is yet to become due, certainly or upon demand of the judgment debtor, whether it was incurred within or without the state, to or from a resident or non-resident, unless it is exempt from application to the satisfaction of the judgment.  A debt may consist of a cause of action which could be assigned or transferred accruing within or without the state.

(b) Property against which a money judgment may be enforced.  A money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment.  A money judgment entered upon a joint liability of two or more persons may be enforced against individual property of those persons summoned and joint property of such persons with any other persons against whom the judgment is entered.

(c) Proper garnishee for particular property or debt

  1. Where property consists of a right or share in the stock of an association or corporation, or interests or profits therein, for which a certificate of stock or other negotiable instrument is not outstanding, the corporation, or the president or treasurer of the association on behalf of the association, shall be the garnishee.
  2. Where property consists of a right or interest to or in a decedent’s estate or any other property or fund held or controlled by a fiduciary, the executor or trustee under the will, administrator or other fiduciary shall be the garnishee.
  3. Where property consists of an interest in a partnership, any partner other than the judgment debtor, on behalf of the partnership, shall be the garnishee.
  4. Where property or a debt is evidenced by a negotiable instrument for the payment of money, a negotiable document of title or a certificate of stock of an association or corporation, the instrument, document or certificate shall be treated as property capable of delivery and the person holding it shall be the garnishee;  except that section 8-112 of the uniform commercial code shall govern the extent to which and the means by which any interest in a certificated security, un-certificated security or security entitlement (as defined in article eight of the uniform commercial code) may be reached by garnishment, attachment or other legal process.

NY CPLR § 5202. JUDGMENT CREDITOR’S RIGHTS IN PERSONAL PROPERTY

(a) Execution creditor’s rights.  Where a judgment creditor has delivered an execution to a sheriff, the judgment creditor’s rights in a debt owed to the judgment debtor or in an interest of the judgment debtor in personal property, against which debt or property the judgment may be enforced, are superior to the extent of the amount of the execution to the rights of any transferee of the debt or property, except:

  1. a transferee who acquired the debt or property for fair consideration before it was levied upon;  or
  2. a transferee who acquired a debt or personal property not capable of delivery for fair consideration after it was levied upon without knowledge of the levy.

(b) Other judgment creditor’s rights.  Where a judgment creditor has secured an order for delivery of, payment of, or appointment of a receiver of, a debt owed to the judgment debtor or an interest of the judgment debtor in personal property, the judgment creditor’s rights in the debt or property are superior to the rights of any transferee of the debt or property, except a transferee who acquired the debt or property for fair consideration and without notice of such order.

NY CPLR § 5203. PRIORITIES AND LIENS UPON REAL PROPERTY

(a) Priority and lien on docketing judgment.  No transfer of an interest of the judgment debtor in real property, against which property a money judgment may be enforced, is effective against the judgment creditor either from the time of the docketing of the judgment with the clerk of the county in which the property is located until ten years after filing of the judgment-roll, or from the time of the filing with such clerk of a notice of levy pursuant to an execution until the execution is returned, except:

  1. a transfer or the payment of the proceeds of a judicial sale, which shall include an execution sale, in satisfaction either of a judgment previously so docketed or of a judgment where a notice of levy pursuant to an execution thereon was previously so filed;  or
  2. a transfer in satisfaction of a mortgage given to secure the payment of the purchase price of the judgment debtor’s interest in the property;  or
  3. a transfer to a purchaser for value at a judicial sale, which shall include an execution sale;  or
  4. when the judgment was entered after the death of the judgment debtor;  or
  5. when the judgment debtor is the state, an officer, department, board or commission of the state, or a municipal corporation;  or
  6. when the judgment debtor is the personal representative of a decedent and the judgment was awarded in an action against him in his representative capacity.

(b) Extension of lien.  Upon motion of the judgment creditor, upon notice to the judgment debtor, served personally or by registered or certified mail, return receipt requested, to the last known address of the judgment debtor, the court may order that the lien of a money judgment upon real property be effective after the expiration of ten years from the filing of the judgment-roll, for a period no longer than the time during which the judgment creditor was stayed from enforcing the judgment, or the time necessary to complete advertisement and sale of real property in accordance with section 5236 , pursuant to an execution delivered to a sheriff prior to the expiration of ten years from the filing of the judgment-roll.  The order shall be effective from the time it is filed with the clerk of the county in which the property is located and an appropriate entry is made upon the docket of the judgment.

(c) Notwithstanding any other provision of law, where a court makes an oral or written determination on the record awarding ownership of an interest in real property, and a judgment effectuating such determination is docketed with the clerk of the county in which such property is located not later than thirty days thereafter, such judgement shall be deemed entered and docketed on the day immediately preceding the date of such determination solely for purposes of establishing the priority thereof against a judicial lien on such property created upon the simultaneous or later filing of a petition in bankruptcy pursuant to the United States bankruptcy code, as amended.

NY CPLR § 5204. RELEASE OF LIEN OR LEVY UPON APPEAL

Upon motion of the judgment debtor, upon notice to the judgment creditor, the sheriff and the sureties upon the undertaking, the court may order, upon such terms as justice requires, that the lien of a money judgment, or that a levy made pursuant to an execution issued upon a money judgment, be released as to all or specified real or personal property upon the ground that the judgment debtor has given an undertaking upon appeal sufficient to secure the judgment creditor.

NY CPLR § 5205. PERSONAL PROPERTY EXEMPT FROM APPLICATION TO THE SATISFACTION OF MONEY JUDGMENTS

(a) Exemption for personal property.  The following personal property when owned by any person is exempt from application to the satisfaction of a money judgment except where the judgment is for the purchase price of the exempt property or was recovered by a domestic, laboring person or mechanic for work performed by that person in such capacity:

  1. all stoves and home heating equipment kept for use in the judgment debtor’s dwelling house and necessary fuel therefor for one hundred twenty days;  one sewing machine with its appurtenances;
  2. religious texts, family pictures and portraits, and school books used by the judgment debtor or in the family;  and other books, not exceeding five hundred dollars in value, kept and used as part of the family or judgment debtor’s library;
  3. a seat or pew occupied by the judgment debtor or the family in a place of public worship;
  4. domestic animals with the necessary food for those animals for one hundred twenty days, provided that the total value of such animals and food does not exceed one thousand dollars;  all necessary food actually provided for the use of the judgment debtor or his family for one hundred twenty days;
  5. all wearing apparel, household furniture, one mechanical, gas or electric refrigerator, one radio receiver, one television set, one computer and associated equipment, one cellphone, crockery, tableware and cooking utensils necessary for the judgment debtor and the family;  all prescribed health aids;
  6. a wedding ring;  a watch, jewelry and art not exceeding one thousand dollars in value;
  7. tools of trade, necessary working tools and implements, including those of a mechanic, farm machinery, team, professional instruments, furniture and library, not exceeding three thousand dollars in value, together with the necessary food for the team for one hundred twenty days, provided, however, that the articles specified in this paragraph are necessary to the carrying on of the judgment debtor’s profession or calling;
  8. one motor vehicle not exceeding four thousand dollars in value above liens and encumbrances of the debtor;  if such vehicle has been equipped for use by a disabled debtor, then ten thousand dollars in value above liens and encumbrances of the debtor;  provided, however, that this exemption for one motor vehicle shall not apply if the debt enforced is for child support, spousal support, maintenance, alimony or equitable distribution, or if the state of New York or any of its agencies or any municipal corporation is the judgment creditor;  and
  9. if no homestead exemption is claimed, then one thousand dollars in personal property, bank account or cash.

(b) Exemption of cause of action and damages for taking or injuring exempt personal property.  A cause of action, to recover damages for taking or injuring personal property exempt from application to the satisfaction of a money judgment, is exempt from application to the satisfaction of a money judgment.  A money judgment and its proceeds arising out of such a cause of action is exempt, for one year after the collection thereof, from application to the satisfaction of a money judgment.

(c) Trust exemption.  

  1. Except as provided in paragraphs four and five of this subdivision, all property while held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor, is exempt from application to the satisfaction of a money judgment.
  2. For purposes of this subdivision, all trusts, custodial accounts, annuities, insurance contracts, monies, assets or interests established as part of, and all payments from, either any trust or plan, which is qualified as an individual retirement account under section four hundred eight or section four hundred eight A of the United States Internal Revenue Code of 1986 ,  1 as amended, a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986 , as amended, or created as a result of rollovers from such plans pursuant to sections 402 (a) (5) , 403 (a) (4) , 408 (d) (3) or 408A of the Internal Revenue Code of 1986 , as amended, or a plan that satisfies the requirements of section 457 of the Internal Revenue Code of 1986 , as amended, shall be considered a trust which has been created by or which has proceeded from a person other than the judgment debtor, even though such judgment debtor is (i) in the case of an individual retirement account plan, an individual who is the settlor of and depositor to such account plan, or (ii) a self-employed individual, or (iii) a partner of the entity sponsoring the Keogh (HR-10) plan, or (iv) a shareholder of the corporation sponsoring the retirement or other plan or (v) a participant in a section 457 plan.
  3. All trusts, custodial accounts, annuities, insurance contracts, monies, assets, or interests described in paragraph two of this subdivision shall be conclusively presumed to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including, but not limited to, all cases arising under or related to a case arising under sections one hundred one to thirteen hundred thirty of title eleven of the United States Bankruptcy Code, as amended.
  4. This subdivision shall not impair any rights an individual has under a qualified domestic relations order as that term is defined in section 414(p) of the United States Internal Revenue Code of 1986 , as amended or under any order of support, alimony or maintenance of any court of competent jurisdiction to enforce arrears/past due support whether or not such arrears/past due support have been reduced to a money judgment.
  5. Additions to an asset described in paragraph two of this subdivision shall not be exempt from application to the satisfaction of a money judgment if (i) made after the date that is ninety days before the interposition of the claim on which such judgment was entered, or (ii) deemed to be fraudulent conveyances under article ten of the debtor and creditor law.

(d) Income exemptions.  The following personal property is exempt from application to the satisfaction of a money judgment, except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents:

  1. ninety per cent of the income or other payments from a trust the principal of which is exempt under subdivision (c);  provided, however, that with respect to any income or payments made from trusts, custodial accounts, annuities, insurance contracts, monies, assets or interest established as part of an individual retirement account plan or as part of a Keogh (HR-10), retirement or other plan described in paragraph two of subdivision (c) of this section, the exception in this subdivision for such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents shall not apply, and the ninety percent exclusion of this paragraph shall become a one hundred percent exclusion;
  2. ninety per cent of the earnings of the judgment debtor for his personal services rendered within sixty days before, and at any time after, an income execution is delivered to the sheriff or a motion is made to secure the application of the judgment debtor’s earnings to the satisfaction of the judgment;  and
  3. payments pursuant to an award in a matrimonial action, for the support of a wife, where the wife is the judgment debtor, or for the support of a child, where the child is the judgment debtor;  where the award was made by a court of the state, determination of the extent to which it is unnecessary shall be made by that court.

(e) Exemptions to members of armed forces.  The pay and bounty of a non-commissioned officer, musician or private in the armed forces of the United States or the state of New York;  a land warrant, pension or other reward granted by the United States, or by a state, for services in the armed forces;  a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the armed forces of the United States or a state;  and the uniform, arms and equipments which were used by a person in the service, are exempt from application to the satisfaction of a money judgment;  provided, however, that the provisions of this subdivision shall not apply to the satisfaction of any order or money judgment for the support of a person’s child, spouse, or former spouse.

(f) Exemption for unpaid milk proceeds.  Ninety per cent of any money or debt due or to become due to the judgment debtor for the sale of milk produced on a farm operated by him and delivered for his account to a milk dealer licensed pursuant to article twenty-one of the agriculture and markets law is exempt from application to the satisfaction of a money judgment.

(g) Security deposit exemption.  Money deposited as security for the rental of real property to be used as the residence of the judgment debtor or the judgment debtor’s family;  and money deposited as security with a gas, electric, water, steam, telegraph or telephone corporation, or a municipality rendering equivalent utility services, for services to judgment debtor’s residence or the residence of judgment debtor’s family, are exempt from application to the satisfaction of a money judgment.

(h) The following personal property is exempt from application to the satisfaction of money judgment, except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents:

  1. any and all medical and dental accessions to the human body and all personal property or equipment that is necessary or proper to maintain or assist in sustaining or maintaining one or more major life activities or is utilized to provide mobility for a person with a permanent disability;  and
  2. any guide dog, service dog or hearing dog, as those terms are defined in section one hundred eight of the agriculture and markets law , or any animal trained to aid or assist a person with a permanent disability and actually being so used by such person, together with any and all food or feed for any such dog or other animal.

(i) Exemption for life insurance policies.  The right of a judgment debtor to accelerate payment of part or all of the death benefit or special surrender value under a life insurance policy, as authorized by paragraph one of subsection (a) of section one thousand one hundred thirteen of the insurance law , or to enter into a viatical settlement pursuant to the provisions of article seventy-eight of the insurance law, is exempt from application to the satisfaction of a money judgment.

(j) Exemption for New York state college choice tuition savings program trust fund payment monies.  Monies in an account created pursuant to article fourteen-A of the education law are exempt from application to the satisfaction of a money judgment as follows:

  1. one hundred percent of monies in an account established in connection with a scholarship program established pursuant to such article is exempt;
  2. one hundred percent of monies in an account is exempt where the judgment debtor is the account owner and designated beneficiary of such account and is a minor;  and
  3. an amount not exceeding ten thousand dollars in an account, or in the aggregate for more than one account, is exempt where the judgment debtor is the account owner of such account or accounts.

For purposes of this subdivision, the terms “account owner” and “designated beneficiary” shall have the meanings ascribed to them in article fourteen-A of the education law.

(k) Notwithstanding any other provision of law to the contrary, where the judgment involves funds of a convicted person as defined in paragraph (c) of subdivision one of section six hundred thirty-two-a of the executive law , and all or a portion of such funds represent compensatory damages awarded by judgment to a convicted person in a separate action, a judgment obtained pursuant to such section six hundred thirty-two-a shall not be subject to execution or enforcement against the first ten percent of the portion of such funds that represents compensatory damages in the convicted person’s action;  provided, however, that this exemption from execution or enforcement shall not apply to judgments obtained by a convicted person prior to the effective date of the chapter of the laws of two thousand one which added this sentence or to any amendment to such judgment where such amendment was obtained on or after the effective date of this subdivision.  For the purpose of determining the amount of a judgment which is not subject to execution or enforcement pursuant to this subdivision:  (i) the court shall deduct attorney’s fees from that portion of the judgment that represents compensatory damages and multiply the remainder of compensatory damages by ten percent;  and (ii) when the judgment includes compensatory and punitive damages, attorney’s fees shall be pro rated among compensatory and punitive damages in the same proportion that all attorney’s fees bear to all damages recovered.

(l) Exemption of banking institution accounts into which statutorily exempt payments are made electronically or by direct deposit.  

  1. If direct deposit or electronic payments reasonably identifiable as statutorily exempt payments were made to the judgment debtor’s account in any banking institution during the forty-five day period preceding the date a restraining notice was served on the banking institution or an execution was served upon the banking institution by a marshal or sheriff, then two thousand five hundred dollars in the judgment debtor’s account is exempt from application to the satisfaction of a money judgment.  Nothing in this subdivision shall be construed to limit a creditor’s rights under 42 U.S.C. § 659 or 38 U.S.C. § 5301 or to enforce a child support, spousal support, alimony or maintenance obligation.  Nothing in this subdivision shall alter the exempt status of funds that are protected from execution, levy, attachment, garnishment or other legal process, pursuant to this section or under any other provision of state or federal law, or shall affect the right of a judgment debtor to claim such exemption.
  2. For purposes of this article, “statutorily exempt payments” means any personal property exempt from application to the satisfaction of a money judgment under any provision of state or federal law.  Such term shall include, but not be limited to, payments from any of the following sources:  social security, including retirement, survivors’ and disability benefits, supplemental security income or child support payments;  veterans administration benefits;  public assistance;  workers’ compensation;  unemployment insurance;  public or private pensions;  railroad retirement;  and black lung benefits.

(iv) Adjustments made under subparagraph (i) of this paragraph shall not apply with respect to restraining notices served or executions effected before the date of the adjustment.

(m) Nothing in subdivision (l) of this section limits the judgment debtor’s exemption rights in this section or under any other law.

(n) Notwithstanding any other provision of law to the contrary, the term “banking institution” when used in this article shall mean and include all banks, trust companies, savings banks, savings and loan associations, credit unions, foreign banking corporations incorporated, chartered, organized or licensed under the laws of this state, foreign banking corporations maintaining a branch in this state, and nationally chartered banks.

(o) The provisions of subdivisions (l), (m) and (n) of this section do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that the restraining notice or execution contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”.

1 For Internal Revenue Code provisions, see 26 USCA § 1 et seq.

NY CPLR § 5206. REAL PROPERTY EXEMPT FROM APPLICATION TO THE SATISFACTION OF MONEY JUDGMENTS

(a) Exemption of homestead.  Property of one of the following types, not exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof:

  1. a lot of land with a dwelling thereon,
  2. shares of stock in a cooperative apartment corporation,
  3. units of a condominium apartment, or
  4. a mobile home.

But no exempt homestead shall be exempt from taxation or from sale for non-payment of taxes or assessments.

(b) Homestead exemption after owner’s death.  The homestead exemption continues after the death of the person in whose favor the property was exempted for the benefit of the surviving spouse and surviving children until the majority of the youngest surviving child and until the death of the surviving spouse.

(c) Suspension of occupation as affecting homestead.  The homestead exemption ceases if the property ceases to be occupied as a residence by a person for whose benefit it may so continue, except where the suspension of occupation is for a period not exceeding one year, and occurs in consequence of injury to, or destruction of, the dwelling house upon the premises.

(d) Exemption of homestead exceeding one hundred fifty thousand dollars in value for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state.  The exemption of a homestead is not void because the value of the property exceeds one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state but the lien of a judgment attaches to the surplus.

(e) Sale of homestead exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state in value.  A judgment creditor may commence a special proceeding in the county in which the homestead is located against the judgment debtor for the sale, by a sheriff or receiver, of a homestead exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state in value.  The court may direct that the notice of petition be served upon any other person.  The court, if it directs such a sale, shall so marshal the proceeds of the sale that the right and interest of each person in the proceeds shall correspond as nearly as may be to his right and interest in the property sold.  Money, not exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam;  one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster;  and seventy-five thousand dollars for the remaining counties of the state, paid to a judgment debtor, as representing his interest in the proceeds, is exempt for one year after the payment, unless, before the expiration of the year, he acquires an exempt homestead, in which case, the exemption ceases with respect to so much of the money as was not expended for the purchase of that property;  and the exemption of the property so acquired extends to every debt against which the property sold was exempt.  Where the exemption of property sold as prescribed in this subdivision has been continued after the judgment debtor’s death, or where he dies after the sale and before payment to him of his portion of the proceeds of the sale, the court may direct that portion of the proceeds which represents his interest be invested for the benefit of the person or persons entitled to the benefit of the exemption, or be otherwise disposed of as justice requires.

(f) Exemption of burying ground.  Land, set apart as a family or private burying ground, is exempt from application to the satisfaction of a money judgment, upon the following conditions only:

  1. a portion of it must have been actually used for that purpose;
  2. it must not exceed in extent one-fourth of an acre;  and
  3. it must not contain any building or structure, except one or more vaults or other places of deposit for the dead, or mortuary monuments.

NY CPLR § 5207. ENFORCEMENT INVOLVING THE STATE

None of the procedures for the enforcement of money judgments are applicable to a judgment against the state.  All procedures for the enforcement of money judgments against other judgment debtors are applicable to the state, its officers, agencies and subdivisions, as a garnishee, except where otherwise prescribed by law, and except that an order in such a procedure shall only provide for the payment of moneys not claimed by the state, and no judgment shall be entered against the state, or any officer, department, board or commission thereof, in such a procedure.  This section shall not be deemed to grant any court jurisdiction to hear and determine claims or actions against the state not otherwise given by law to such court.

NY CPLR § 5208. ENFORCEMENT AFTER DEATH OF JUDGMENT DEBTOR; LEAVE OF COURT; EXTENSION OF LIEN

Except where otherwise prescribed by law, after the death of a judgment debtor, an execution upon a money judgment shall not be levied upon any debt owed to him or any property in which he has an interest, nor shall any other enforcement procedure be undertaken with respect to such debt or property, except upon leave of the surrogate’s court which granted letters testamentary or letters of administration upon the estate.  If such letters have not been granted within eighteen months after the death, leave to issue such an execution or undertake such enforcement procedure may thereafter be granted, upon motion of the judgment creditor upon such notice as the court may require, by any court from which the execution could issue or in which the enforcement procedure could be commenced.  A judgment lien existing against real property at the time of a judgment debtor’s death shall expire two years thereafter or ten years after filing of the judgment-roll, whichever is later.

NY CPLR § 5209. DISCHARGE OF GARNISHEE’S OBLIGATION

A person who, pursuant to an execution or order, pays or delivers, to the judgment creditor or a sheriff or receiver, money or other personal property in which a judgment debtor has or will have an interest, or so pays a debt he owes the judgment debtor, is discharged from his obligation to the judgment debtor to the extent of the payment or delivery.

NY CPLR § 5210. POWER OF COURT TO PUNISH FOR CONTEMPT

Every court in which a special proceeding to enforce a money judgment may be commenced, shall have power to punish a contempt of court committed with respect to an enforcement procedure.

NY CPLR § 5211. PRIVILEGE ON EXAMINATION; IMMUNITY

The court may confer immunity upon any witness in accordance with the provisions of section 50.20 of the criminal procedure law for testimony or evidence in an enforcement procedure relating to disposition of property in which the judgment debtor has an interest, or relating to his or another person’s claim to be entitled, as against the judgment creditor or a receiver, to hold property derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor;  provided, however, that no immunity shall be conferred except upon twenty-four hours’ written notice to the appropriate district attorney   1 having an official interest therein.

NY CPLR § 5221. WHERE ENFORCEMENT PROCEEDING COMMENCED

(a) Court and county in which proceeding commenced.

  1. If the judgment sought to be enforced was entered in the city court of any city outside the city of New York, and the respondent resides or is regularly employed or has a place for the regular transaction of business in person within the county in which the court is or was located, a special proceeding authorized by this article shall be commenced in that court or in the county court of that county.
  2. If the judgment sought to be enforced was entered in a district court, or by a justice of the peace whose office has been or is by law to be abolished and whose jurisdiction has been or is by law to be superseded by a district court, and the respondent resides or is regularly employed or has a place for the regular transaction of business in person within the county in which such district court is established, a special proceeding authorized by this article shall be commenced in such district court.
  3. If the judgment sought to be enforced was entered in the municipal court of the city of New York, the city court of the city of New York or the civil court of the city of New York, and the respondent resides or is regularly employed or has a place for the regular transaction of business in person within that city, a special proceeding authorized by this article shall be commenced in the civil court of the city of New York.
  4. In any other case, if the judgment sought to be enforced was entered in any court of this state, a special proceeding authorized by this article shall be commenced, either in the supreme court or a county court, in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person or, if there is no such county, in any county in which he may be served or the county in which the judgment was entered.
  5. If no court in which a special proceeding authorized by this article could be commenced is in session, the special proceeding may be commenced in the supreme court or a county court in any county within the judicial district in which the proceeding could otherwise be commenced or in any county adjoining the county in which the proceeding could otherwise be commenced.

(b) Notices, subpoenas and motions.  A notice or subpoena authorized by this article may be issued from, and a motion authorized by this article may be made before, any court in which a special proceeding authorized by this article could be commenced if the person served with the notice, subpoena or notice of motion were respondent.

NY CPLR § 5222. RESTRAINING NOTICE

(a) Issuance;  on whom served;  form;  service.  A restraining notice may be issued by the clerk of the court or the attorney for the judgment creditor as officer of the court, or by the support collection unit designated by the appropriate social services district.  It may be served upon any person, except the employer of a judgment debtor or obligor where the property sought to be restrained consists of wages or salary due or to become due to the judgment debtor or obligor.  It shall be served personally in the same manner as a summons or by registered or certified mail, return receipt requested or if issued by the support collection unit, by regular mail, or by electronic means as set forth in subdivision (g) of this section.  It shall specify all of the parties to the action, the date that the judgment or order was entered, the court in which it was entered, the amount of the judgment or order and the amount then due thereon, the names of all parties in whose favor and against whom the judgment or order was entered, it shall set forth subdivision (b) and shall state that disobedience is punishable as a contempt of court, and it shall contain an original signature or copy of the original signature of the clerk of the court or attorney or the name of the support collection unit which issued it.  Service of a restraining notice upon a department or agency of the state or upon an institution under its direction shall be made by serving a copy upon the head of the department, or the person designated by him or her and upon the state department of audit and control at its office in Albany;  a restraining notice served upon a state board, commission, body or agency which is not within any department of the state shall be made by serving the restraining notice upon the state department of audit and control at its office in Albany.  Service at the office of a department of the state in Albany may be made by the sheriff of any county by registered or certified mail, return receipt requested, or if issued by the support collection unit, by regular mail.

(b) Effect of restraint;  prohibition of transfer;  duration.  A judgment debtor or obligor served with a restraining notice is forbidden to make or suffer any sale, assignment, transfer or interference with any property in which he or she has an interest, except as set forth in subdivisions (h) and (i) of this section, and except upon direction of the sheriff or pursuant to an order of the court, until the judgment or order is satisfied or vacated.  A restraining notice served upon a person other than the judgment debtor or obligor is effective only if, at the time of service, he or she owes a debt to the judgment debtor or obligor or he or she is in the possession or custody of property in which he or she knows or has reason to believe the judgment debtor or obligor has an interest, or if the judgment creditor or support collection unit has stated in the notice that a specified debt is owed by the person served to the judgment debtor or obligor or that the judgment debtor or obligor has an interest in specified property in the possession or custody of the person served.  All property in which the judgment debtor or obligor is known or believed to have an interest then in and thereafter coming into the possession or custody of such a person, including any specified in the notice, and all debts of such a person, including any specified in the notice, then due and thereafter coming due to the judgment debtor or obligor, shall be subject to the notice except as set forth in subdivisions (h) and (i) of this section.  Such a person is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff or the support collection unit, except as set forth in subdivisions (h) and (i) of this section, and except upon direction of the sheriff or pursuant to an order of the court, until the expiration of one year after the notice is served upon him or her, or until the judgment or order is satisfied or vacated, whichever event first occurs.  A judgment creditor or support collection unit which has specified personal property or debt in a restraining notice shall be liable to the owner of the property or the person to whom the debt is owed, if other than the judgment debtor or obligor, for any damages sustained by reason of the restraint.  If a garnishee served with a restraining notice withholds the payment of money belonging or owed to the judgment debtor or obligor in an amount equal to twice the amount due on the judgment or order, the restraining notice is not effective as to other property or money.

(c) Subsequent notice. Leave of court is required to serve more than one restraining notice upon the same person with respect to the same judgment or order.  A judgment creditor shall not serve more than two restraining notices per year upon a natural person’s banking institution account.

(d) Notice to judgment debtor or obligor.  Except where the provisions of section fifty-two hundred twenty-two-a of this article are applicable, pursuant to subdivision (a) of such section, if a notice in the form prescribed in subdivision (e) of this section has not been given to the judgment debtor or obligor within a year before service of a restraining notice, a copy of the restraining notice together with the notice to judgment debtor or obligor shall be mailed by first class mail or personally delivered to each judgment debtor or obligor who is a natural person within four days of the service of the restraining notice.  Such notice shall be mailed to the defendant at his or her residence address;  or in the event such mailing is returned as undeliverable by the post office, or if the residence address of the defendant is unknown, then to the defendant in care of the place of employment of the defendant if known, in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by the return address or otherwise, that the communication is from an attorney or concerns a judgment or order;  or if neither the residence address nor the place of employment of the defendant is known then to the defendant at any other known address.

(e) Content of notice.  The notice required by subdivision (d) of this section shall be in substantially the following form and may be included in the restraining notice:

NOTICE TO JUDGMENT DEBTOR OR OBLIGOR

Money or property belonging to you may have been taken or held in order to satisfy a judgment or order which has been entered against you.  Read this carefully.

YOU MAY BE ABLE TO GET YOUR MONEY BACK

State and federal laws prevent certain money or property from being taken to satisfy judgments or orders.  Such money or property is said to be “exempt”.  The following is a partial list of money which may be exempt:

  1. Supplemental security income, (SSI);
  2. Social security;
  3. Public assistance (welfare);
  4. Spousal support, maintenance (alimony) or child support;
  5. Unemployment benefits;
  6. Disability benefits;
  7. Workers’ compensation benefits;
  8. Public or private pensions;
  9. Veterans benefits;
  10. Ninety percent of your wages or salary earned in the last sixty days;
  11. Twenty-five hundred dollars of any bank account containing statutorily exempt payments that were deposited electronically or by direct deposit within the last forty-five days, including, but not limited to, your social security, supplemental security income, veterans benefits, public assistance, workers’ compensation, unemployment insurance, public or private pensions, railroad retirement benefits, black lung benefits, or child support payments;
  12. Railroad retirement;  and
  13. Black lung benefits.

If you think that any of your money that has been taken or held is exempt, you must act promptly because the money may be applied to the judgment or order.  If you claim that any of your money that has been taken or held is exempt, you may contact the person sending this notice.

Also, YOU MAY CONSULT AN ATTORNEY, INCLUDING ANY FREE LEGAL SERVICES ORGANIZATION IF YOU QUALIFY.  You can also go to court without an attorney to get your money back.  Bring this notice with you when you go.  You are allowed to try to prove to a judge that your money is exempt from collection under New York civil practice law and rules, sections fifty-two hundred twenty-two-a , fifty-two hundred thirty-nine and fifty-two hundred forty .  If you do not have a lawyer, the clerk of the court may give you forms to help you prove your account contains exempt money that the creditor cannot collect. The law (New York civil practice law and rules, article four and sections fifty-two hundred thirty-nine and fifty-two hundred forty ) provides a procedure for determination of a claim to an exemption.

(f) For the purposes of this section “order” shall mean an order issued by a court of competent jurisdiction directing the payment of support, alimony or maintenance upon which a “default” as defined in paragraph seven of subdivision (a) of section fifty-two hundred forty-one of this article has been established subject to the procedures established for the determination of a “mistake of fact” for income executions pursuant to subdivision (e) of section fifty-two hundred forty-one of this article except that for the purposes of this section only a default shall not be founded upon retroactive child support obligations as defined in paragraph (a) of subdivision one of section four hundred forty of the family court act and subdivision one of section two hundred forty and paragraph b of subdivision nine of section two hundred thirty-six of the domestic relations law .

(g) Restraining notice in the form of magnetic tape or other electronic means.  Where such person consents thereto in writing, a restraining notice in the form of magnetic tape or other electronic means, as defined in subdivision (f) of rule twenty-one hundred three of this chapter, may be served upon a person other than the judgment debtor or obligor.  A restraining notice in such form shall contain all of the information required to be specified in a restraining notice under subdivision (a), except for the original signature or copy of the original signature of the clerk or attorney who issued the restraining notice.  The provisions of this subdivision notwithstanding, the notice required by subdivisions (d) and (e) shall be given to the judgment debtor or obligor in the written form set forth therein.

(h) Effect of restraint on judgment debtor’s banking institution account into which statutorily exempt payments are made electronically or by direct deposit. Notwithstanding the provisions of subdivision (b) of this section, if direct deposit or electronic payments reasonably identifiable as statutorily exempt payments as defined in paragraph two of subdivision (l) of section fifty-two hundred five of this article were made to the judgment debtor’s account during the forty-five day period preceding the date that the restraining notice was served on the banking institution, then the banking institution shall not restrain two thousand five hundred dollars in the judgment debtor’s account.  If the account contains an amount equal to or less than two thousand five hundred dollars, the account shall not be restrained and the restraining notice shall be deemed void. Nothing in this subdivision shall be construed to limit a banking institution’s right or obligation to restrain or remove such funds from the judgment debtor’s account if required by 42 U.S.C. § 659 or 38 U.S.C. § 5301 or by a court order.  Nothing in this subdivision shall alter the exempt status of funds that are protected from execution, levy, attachment, garnishment or other legal process, under section fifty-two hundred five of this article or under any other provision of state or federal law, or affect the right of a judgment debtor to claim such exemption.

(i) Effect of restraint on judgment debtor’s banking institution account.  A restraining notice issued pursuant to this section shall not apply to an amount equal to or less than the greater of two hundred forty times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938   1 or two hundred forty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable (as published on the websites of the United States department of labor and the state department of labor) except such part thereof as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents.  This amount shall be equal to seventeen hundred sixteen dollars on the effective date of this subdivision, and shall rise to seventeen hundred forty dollars on July twenty-fourth, two thousand nine, and shall rise thereafter in tandem with the minimum wage.  Nothing in this subdivision shall be construed to limit a banking institution’s right or obligation to restrain or remove such funds from the judgment debtor’s account if required by 42 U.S.C. § 659 or 38 U.S.C. § 5301 or by a court order.  Where a judgment debtor’s account contains an amount equal to or less than ninety percent of the greater of two hundred forty times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938 or two hundred forty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable (as published on the websites of the United States department of labor and the state department of labor), the account shall not be restrained and the restraining notice shall be deemed void, except as to those funds that a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents.  Nothing in this subdivision shall alter the exempt status of funds which are exempt from execution, levy, attachment or garnishment, under section fifty-two hundred five of this article or under any other provision of state or federal law, or the right of a judgment debtor to claim such exemption.

(j) Fee for banking institution’s costs in processing a restraining notice for an account.  In the event that a banking institution served with a restraining notice cannot lawfully restrain a judgment debtor’s banking institution account, or a restraint is placed on the judgment debtor’s account in violation of any section of this chapter, the banking institution shall charge no fee to the judgment debtor regardless of any terms of agreement, or schedule of fees, or other contract between the judgment debtor and the banking institution.

(k) The provisions of subdivisions (h), (i) and (j) of this section do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that the restraining notice contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”.

1 29 USCA § 201 et seq.

NY CPLR § 5222-a. SERVICE OF NOTICES AND FORMS AND PROCEDURE FOR CLAIM OF EXEMPTION

(a) Applicability.  Any person authorized under subdivision (a) of section fifty-two hundred twenty-two of this article issuing a restraining notice affecting a natural person’s account at a banking institution pursuant to such subdivision must comply with this section, in addition to the general provisions set forth in such section.  Any sheriff levying against a natural person’s account at a banking institution pursuant to section fifty-two hundred thirty-two of this article must comply with this section, in addition to the general provisions set forth in section fifty-two hundred thirty-two of this article.  The procedures set forth in subdivisions (b), (c), (d), (e), (f) and (g) of this section shall not apply where pursuant to subdivision (h) and/or (i) of section fifty-two hundred twenty-two or subdivision (e) of section fifty-two hundred thirty-two of this article, no funds in the account are restrained or levied upon.

(b) Service of exemption notice and exemption claim form.  

  1. Service with restraining notice upon banking institution.  The person issuing the restraining notice pursuant to subdivision (a) of section fifty-two hundred twenty-two of this article shall provide the banking institution with the restraining notice, a copy of the restraining notice, an exemption notice and two exemption claim forms with sections titled “ADDRESS A” and “ADDRESS B” completed.  The exemption notice and exemption claim forms shall be in the forms set forth in paragraph four of this subdivision.  The notice and the forms shall be served on the banking institution together with the restraining notice and copy of the restraining notice.  Service must be accomplished in accordance with subdivision (a) or (g) of section fifty-two hundred twenty-two of this article.  Failure to serve the notice and forms together with the restraining notice renders the restraining notice void, and the banking institution shall not restrain the account.
  2. Service of execution by levy upon a garnishee banking institution.  When serving an execution pursuant to subdivision (a) of section fifty-two hundred thirty-two of this article, the sheriff shall provide the banking institution with an exemption notice and two exemption claim forms, which shall be in the forms set forth in paragraph four of this subdivision.  The sheriff shall serve both the exemption notice and the exemption claim forms on the banking institution together with the execution notice.  Service must be accomplished in accordance with subdivision (a) of section fifty-two hundred thirty-two of this article.  Failure to serve the notice and forms renders the execution void, and the banking institution shall not levy upon the account.
  3. Service upon judgment debtor.  Within two business days after receipt of the restraining notice or execution, exemption notice and exemption claim forms, the banking institution shall serve upon the judgment debtor the copy of the restraining notice, the exemption notice and two exemption claim forms.  The banking institution shall serve the notice and forms by first class mail to the last known address of the judgment debtor.  The inadvertent failure by a depository institution to provide the notice required by this subdivision shall not give rise to liability on the part of the depository institution.
  4. Content of exemption notice and exemption claim form.
    • a. The EXEMPTION NOTICE shall be in the following form:
      “EXEMPTION NOTICEas required by New York LawYOUR BANK ACCOUNT IS RESTRAINED OR “FROZEN”
      The attached Restraining Notice or notice of Levy by Execution has been issued against your bank account.  You are receiving this notice because a creditor has obtained a money judgment against you, and one or more of your bank accounts has been restrained to pay the judgment.  A money judgment is a court’s decision that you owe money to a creditor.  You should be aware that FUTURE DEPOSITS into your account(s) might also be restrained if you do not respond to this notice.
      You may be able to “vacate” (remove) the judgment.  If the judgment is vacated, your bank account will be released.  Consult an attorney (including free legal services) or visit the court clerk for more information about how to do this.
      Under state and federal law, certain types of funds cannot be taken from your bank account to pay a judgment.  Such money is said to be “exempt.”
      DOES YOUR BANK ACCOUNT CONTAIN ANY OF THE FOLLOWING TYPES OF FUNDS?
      1. Social security;
      2. Social security disability (SSD);
      3. Supplemental security income (SSI);
      4. Public assistance (welfare);
      5. Income earned while receiving SSI or public assistance;
      6. Veterans benefits;
      7. Unemployment insurance;
      8. Payments from pensions and retirement accounts;
      9. Disability benefits;
      10. Income earned in the last 60 days (90% of which is exempt);
      11. Workers’ compensation benefits;
      12. Child support;
      13. Spousal support or maintenance (alimony);
      14. Railroad retirement;  and/or
      15. Black lung benefits.

If YES, you can claim that your money is exempt and cannot be taken.  To make the claim, you must:

      • (a) complete the EXEMPTION CLAIM FORM attached;
      • (b) deliver or mail the form to the bank with the restrained or “frozen” account;  and
      • (c) deliver or mail the form to the creditor or its attorney at the address listed on the form.
        You must send the forms within 20 DAYS of the postmarked date on the envelope holding this notice.  You may be able to get your account released faster if you send to the creditor or its attorney written proof that your money is exempt.  Proof can include an award letter from the government, an annual statement from your pension, pay stubs, copies of checks, bank records showing the last two months of account activity, or other papers showing that the money in your bank account is exempt.  If you send the creditor’s attorney proof that the money in your account is exempt, the attorney must release that money within seven days.  You do not need an attorney to make an exemption claim using the form.”
    • b. The EXEMPTION CLAIM form shall be in the following form:

NAME OF COURT, NAME OF COUNTY

  
   

x

  
   

PLAINTIFF/PETITIONER/CLAIMANT

INDEX NO.

 

V.

  

DEFENDANT/RESPONDENT

EXEMPTION CLAIM FORM

 
   

x

  
   

NAME AND ADDRESS OF JUDGMENT CREDITOR OR ATTORNEY

NAME AND ADDRESS OF FINANCIAL INSTITUTION

 

(To be completed by judgment creditor or attorney)

(To be completed by judgment creditor or attorney)

 

ADDRESS

ADDRESS

 

A․․․․․․․․․․․․․․․․․․․․․

B․․․․․․․․․․․․․․․․․․․․․

 

 ․․․․․․․․․․․․․․․․․․

  ․․․․․․․․․․․․․․․․․․

 
   
   

Directions:  To claim that some or all of the funds in your account are exempt, complete both copies of this form, and make one copy for yourself.  Mail or deliver one form to ADDRESS A and one form to ADDRESS B within twenty days of the date on the envelope holding this notice.  **If you have any documents, such as an award letter, an annual statement from your pension, paystubs, copies of checks or bank records showing the last two months of account activity, include copies of the documents with this form.  Your account may be released more quickly.

 
  

___________________________________________________________________________________________________

 
  

I state that my account contains the following type(s) of funds (check all that apply):

 
  

․․․․

Social security

 

․․․․

Social security disability (SSD)

 

․․․․

Supplemental security income (SSI)

 

․․․․

Public assistance

 

․․․․

Wages while receiving SSI or public assistance

 

․․․․

Veterans benefits

 

․․․․

Unemployment insurance

 

․․․․

Payments from pensions and retirement accounts

 

․․․․

Income earned in the last 60 days (90% of which is exempt)

 

․․․․

Child support

 

․․․․

Spousal support or maintenance (alimony)

 

․․․․

Workers’ compensation

 

․․․․

Railroad retirement or black lung benefits

 

․․․․

Other (describe exemption):_________________________

 
   

I request that any correspondence to me regarding my claim be sent to the following address:

  
   

___________________________________________________________________________________________________

  

(FILL IN YOUR COMPLETE ADDRESS)

  
   

I certify under penalty of perjury that the statement above is true to the best of my knowledge and belief.

  
   

___________________________________________________________________________________________________

  
   

 DATE

 

SIGNATURE OF JUDGMENT DEBTOR

(c) Claim of exemption.

  1. To claim an exemption pursuant to the procedures in this section, the judgment debtor shall complete the exemption claim forms, sign them under penalty of perjury, and serve them within twenty days of the date postmarked on the correspondence containing the notice and forms.  The judgment debtor shall serve one completed exemption claim form on the banking institution and the other on the attorney for the judgment creditor.  In the event that there is no attorney for the judgment creditor, then the exemption claim form must be served directly on the judgment creditor.  The judgment debtor may serve the exemption claim forms in person or by first-class mail.
  2. Where the banking institution receives an exemption claim form, it shall notify the judgment creditor forthwith of the date on which the funds will be released pursuant to paragraph three of this subdivision.
  3. The banking institution shall release all funds in the judgment debtor’s account eight days after the date postmarked on the envelope containing the executed exemption claim form mailed to the banking institution or the date of personal delivery of the executed exemption claim form to the banking institution, and the restraint shall be deemed void, except where the judgment creditor interposes an objection to the exemption within that time.
  4. Where the executed exemption claim form sent to the judgment creditor is accompanied by information demonstrating that all funds in the account are exempt, the judgment creditor shall, within seven days of the postmark on the envelope containing the exemption claim form and accompanying information, instruct the banking institution to release the account, and the restraint shall be deemed void.  Where the account contains some funds from exempt sources, and other funds from unknown sources, the judgment creditor shall apply the lowest intermediate balance principle of accounting and, within seven days of the postmark on the envelope containing the exemption claim form and accompanying information, shall instruct the banking institution to release the exempt money in the account.  The provisions of paragraph two of subdivision (b) of rule twenty-one hundred three of this chapter shall not enlarge the judgment creditor’s time to move pursuant to this section.  Information demonstrating that funds are exempt includes, but is not limited to, originals or copies of benefit award letters, checks, check stubs or any other document that discloses the source of the judgment debtor’s income, and bank records showing the last two months of account activity.  If the judgment creditor fails to act in accordance with this subdivision, the judgment creditor shall be deemed to have acted in bad faith and the judgment debtor may seek a court award of the damages, costs, fees and penalties provided for in subdivision (g) of this section.
  5. If no claim of exemption is received by the banking institution within twenty-five days after the notice and forms are mailed to the judgment debtor, the funds remain subject to the restraining notice or execution.  Failure of the judgment debtor to deliver the executed exemption claim form does not constitute a waiver of any right to an exemption.

(d) Objection to exemption claim and request for hearing.  A judgment creditor may object to the claim of exemption by moving for an order pursuant to section fifty-two hundred forty of this article.  The judgment creditor must serve the banking institution and the judgment debtor with its motion papers within eight days after the date postmarked on the envelope containing the executed exemption claim form or the date of personal delivery of the executed exemption claim form to the banking institution, and the provisions of paragraph one of subdivision (b) of rule twenty-one hundred three of this chapter shall not enlarge the judgment creditor’s time to move pursuant to this section.  The judgment debtor shall be served at the address provided on the exemption claim form.  The affirmation or affidavit in support of the motion shall demonstrate a reasonable belief that such judgment debtor’s account contains funds that are not exempt from execution and the amount of such nonexempt funds.  The executed exemption claim form shall be attached to the affirmation or affidavit.  The affirmation or affidavit shall not be conclusory, but is required to show the factual basis upon which the reasonable belief is based.  The hearing to decide the motion shall be noticed for seven days after service of the moving papers.  The executed exemption claim form shall be prima facie evidence at such hearing that the funds in the account are exempt funds.  The burden of proof shall be upon the judgment creditor to establish the amount of funds that are not exempt.  The court shall, within five days of the hearing, issue an order stating whether or not funds in the account are exempt and ordering the appropriate relief.  The judgment creditor or its attorney must serve the order on the banking institution and the judgment debtor no later than two business days after the court issues the order.

(e) Duties of banking institution if objection is made to exemption claim.  Upon receipt of a written objection pursuant to subdivision (d) of this section from the judgment creditor or its attorney within the specified eight-day period, the banking institution shall retain the funds claimed to be exempt for twenty-one days unless otherwise ordered by the court.  If the period of twenty-one days expires and the banking institution has not been otherwise ordered by the court, the banking institution shall release the funds to the judgment debtor.

(f) Release of funds.  At any time during the procedure specified in this section, the judgment debtor or the judgment creditor may, by a writing dated after the service of the restraining notice, direct the banking institution to release the funds in question to the other party.  Upon receipt of a release, the banking institution shall release the funds as directed.

(g) Proceedings;  bad faith claims.  Where the judgment creditor objects to a claim of exemption pursuant to subdivision (d) of this section and the court finds that the judgment creditor disputed the claim of exemption in bad faith, as provided in paragraph four of subdivision (c) of this section, the judgment debtor shall be awarded costs, reasonable attorney fees, actual damages and an amount not to exceed one thousand dollars.

(h) Rights of judgment debtor.  Nothing in this section shall in any way restrict the rights and remedies otherwise available to a judgment debtor, including but not limited to, rights to property exemptions under federal and state law.

(i) The provisions of this section do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that the restraining notice contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”.

NY CPLR § 5223. DISCLOSURE

At any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena, which shall specify all of the parties to the action, the date of the judgment, the court in which it was entered, the amount of the judgment and the amount then due thereon, and shall state that false swearing or failure to comply with the subpoena is punishable as a contempt of court.

NY CPLR RULE 5224. SUBPOENA; PROCEDURE

(a) Kinds and service of subpoena.  Any or all of the following kinds of subpoenas may be served:

  1. a subpoena requiring attendance for the taking of a deposition upon oral or written questions at a time and place named therein;  or
  2. a subpoena duces tecum requiring the production of books and papers for examination at a time and place named therein;  or
  3. an information subpoena, accompanied by a copy and original of written questions and a prepaid, addressed return envelope.  Service of an information subpoena may be made by registered or certified mail, return receipt requested.  Answers shall be made in writing under oath by the person upon whom served, if an individual, or by an officer, director, agent or employee having the information, if a corporation, partnership or sole proprietorship.  Each question shall be answered separately and fully and each answer shall refer to the question to which it responds.  Answers shall be returned together with the original of the questions within seven days after receipt.  Where the person serving the subpoena is a judgment creditor, other than where the state, a municipality or an agency or officer of the state or a municipality is the judgment creditor, the following additional rules shall apply:
    • (i) information subpoenas, served on an individual or entity other than the judgment debtor, may be served on an individual, corporation, partnership or sole proprietorship only if the judgment creditor or the judgment creditor’s attorney has a reasonable belief that the party receiving the subpoena has in their possession information about the debtor that will assist the creditor in collecting his or her judgment.  Any information subpoena served pursuant to this subparagraph shall contain a certification signed by the judgment creditor or his or her attorney stating the following:  I HEREBY CERTIFY THAT THIS INFORMATION SUBPOENA COMPLIES WITH RULE 5224 OF THE CIVIL PRACTICE LAW AND RULES AND SECTION 601 OF THE GENERAL BUSINESS LAW THAT I HAVE A REASONABLE BELIEF THAT THE PARTY RECEIVING THIS SUBPOENA HAS IN THEIR POSSESSION INFORMATION ABOUT THE DEBTOR THAT WILL ASSIST THE CREDITOR IN COLLECTING THE JUDGMENT.  By signing the certification, the judgment creditor or attorney certifies that, to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the individual or entity receiving the subpoena has relevant information about the debtor.
    • (ii) if an information subpoena, served on an individual or entity other than the judgment debtor, does not contain the certification provided for in subparagraph (i) of this paragraph, such subpoena shall be deemed null and void.
    • (iii) if an information subpoena, served on an individual or entity other than the judgment debtor, does contain the certification provided for in subparagraph (i) of this paragraph, the individual, corporation, partnership or sole proprietorship receiving the subpoena, may move to quash the subpoena pursuant to section twenty-three hundred four of this chapter, except that such motion shall be made in the court that issued the underlying judgment.
    • (iv) failure to comply with an information subpoena shall be governed by subdivision (b) of section twenty-three hundred eight of this chapter, except that such motion shall be made in the court that issued the underlying judgment.

4. an information subpoena in the form of magnetic tape or other electronic means.  Where the person to be served consents thereto in writing, an information subpoena in the form of magnetic tape or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of this chapter, may be served upon the individual, or if a corporation, partnership, limited liability company, or sole proprietorship, upon the officer, director, agent or employee having the information.  Answers shall be provided within seven days.

 

(a-1) Scope of subpoena duces tecum.  A subpoena duces tecum authorized by this rule and served on a judgment debtor, or on any individual while in the state, or on a corporation, partnership, limited liability company or sole proprietorship doing business, licensed, qualified, or otherwise entitled to do business in the state, shall subject the person or other entity or business served to the full disclosure prescribed by section fifty-two hundred twenty-three of this article whether the materials sought are in the possession, custody or control of the subpoenaed person, business or other entity within or without the state.   Section fifty-two hundred twenty-nine of this article shall also apply to disclosure under this rule.

(b) Fees.  A judgment debtor served with a subpoena under this section and any other person served with an information subpoena shall not be entitled to any fee.  Any other person served with a subpoena requiring attendance or the production of books and papers shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.

(c) Time and place of examination.  A deposition on oral or written questions or an examination of books and papers may proceed upon not less than ten days’ notice to the person subpoenaed, unless the court orders shorter notice, before any person authorized by subdivision (a) of rule 3113 .  An examination shall be held during business hours and, if taken within the state, at a place specified in rule 3110 .  Upon consent of the witness, an examination may be held at any other place within the state and before any officer authorized to administer an oath.

(d) Conduct of examination.  The officer before whom the deposition is to be taken shall put the witness on oath.  If requested by the person conducting the examination, the officer shall personally, or by some one acting under his direction, record and transcribe the testimony and shall list all appearances by the parties and attorneys.  Examination and cross-examination of the witness shall proceed as permitted in the trial of actions in open court.  Cross-examination need not be limited to the subject matter of the examination in chief.  All objections made at the time of the examination to the qualifications of the officer taking the deposition, or of a person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order.  The deposition shall be taken continuously and without unreasonable adjournment, unless the court orders or the witness agrees otherwise.  If the witness does not understand the English language, the judgment creditor shall, at his own expense, provide a translation of all questions and answers.  Unless the court orders otherwise, a person other than the judgment debtor served with a subpoena duces tecum requiring the production of books of account may produce in place of the original books of account a sworn transcript of such accounts as are relevant.

(e) Signing deposition;  physical preparation.  At the request of the person conducting the examination, a deposition on written questions or a deposition on oral questions which has been transcribed shall be submitted to the witness and shall be read to or by him, and any changes in form or substance which the witness desires to make shall be entered upon the deposition with a statement of the reasons given by the witness for making them;  and the deposition shall then be signed by the witness before any officer authorized to administer an oath.  If the witness fails to sign the deposition, the officer before whom the deposition was taken shall sign it and state on the record the fact of the witness’s failure or refusal to sign together with any reason given.  The deposition may then be used as fully as though signed.  Where testimony is transcribed, the officer before whom the deposition was taken shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.

(f) Subsequent examination.  Leave of court is required to compel a judgment debtor to appear for the taking of his deposition or to compel the production by him of books and papers within one year after the conclusion of a previous examination of him with respect to the same judgment.

NY CPLR § 5225. PAYMENT OR DELIVERY OF PROPERTY OF JUDGMENT DEBTOR

(a) Property in the possession of judgment debtor.  Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession or custody of money or other personal property in which he has an interest, the court shall order that the judgment debtor pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff.  Notice of the motion shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested.

(b) Property not in the possession of judgment debtor.  Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor’s rights to the property are superior to those of the transferee, the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff.  Costs of the proceeding shall not be awarded against a person who did not dispute the judgment debtor’s interest or right to possession.  Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested.  The court may permit the judgment debtor to intervene in the proceeding.  The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239 .

(c) Documents to effect payment or delivery.  The court may order any person to execute and deliver any document necessary to effect payment or delivery.

NY CPLR § 5226. INSTALLMENT PAYMENT ORDER

Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is receiving or will receive money from any source, or is attempting to impede the judgment creditor by rendering services without adequate compensation, the court shall order that the judgment debtor make specified installment payments to the judgment creditor.  Notice of the motion shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested.  In fixing the amount of the payments, the court shall take into consideration the reasonable requirements of the judgment debtor and his dependents, any payments required to be made by him or deducted from the money he would otherwise receive in satisfaction of other judgments and wage assignments, the amount due on the judgment, and the amount being or to be received, or, if the judgment debtor is attempting to impede the judgment creditor by rendering services without adequate compensation, the reasonable value of the services rendered.

NY CPLR § 5227. PAYMENT OF DEBTS OWED TO JUDGMENT DEBTOR

Upon a special proceeding commenced by the judgment creditor, against any person who it is shown is or will become indebted to the judgment debtor, the court may require such person to pay to the judgment creditor the debt upon maturity, or so much of it as is sufficient to satisfy the judgment, and to execute and deliver any document necessary to effect payment;  or it may direct that a judgment be entered against such person in favor of the judgment creditor.  Costs of the proceeding shall not be awarded against a person who did not dispute the indebtedness.  Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested.  The court may permit the judgment debtor to intervene in the proceeding.  The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239 .

NY CPLR § 5228. RECEIVERS

(a) Appointment of receiver.  Upon motion of a judgment creditor, upon such notice as the court may require, the court may appoint a receiver who may be authorized to administer, collect, improve, lease, repair or sell any real or personal property in which the judgment debtor has an interest or to do any other acts designed to satisfy the judgment.  As far as practicable, the court shall require that notice be given to the judgment debtor and to any other judgment creditors of the judgment debtor.  The order of appointment shall specify the property to be received, the duties of the receiver and the manner in which they are to be performed.  A receiver shall have no power to employ counsel unless expressly so authorized by order of the court.  A receiver shall be entitled to necessary expenses and to such commissions, not exceeding five percent of the sums received and disbursed by him, as the court which appointed him allows, but if a judgment creditor is appointed receiver, he shall not be entitled to compensation.  If a receiver has been appointed, a court making an order directing payment, or delivery, of property shall direct that payment, or delivery, be made to the receiver rather than to a sheriff. Sections 6402 , 6403 , 6404 and 6405 are applicable to receivers appointed under this subdivision.

(b) Extension of receivership.  Where a receiver has been appointed, the court, upon motion of a judgment creditor, upon such notice as it may require, shall extend the receivership to his judgment.

NY CPLR § 5229. ENFORCEMENT BEFORE JUDGMENT ENTERED

In any court, before a judgment is entered, upon motion of the party in whose favor a verdict or decision has been rendered, the trial judge may order examination of the adverse party and order him restrained with the same effect as if a restraining notice had been served upon him after judgment.

 

NY CPLR § 5230. EXECUTIONS

(a) Form.  An execution shall specify the date that the judgment or order was entered, the court in which it was entered, the amount of the judgment or order and the amount due thereon and it shall specify the names of the parties in whose favor and against whom the judgment or order was entered.  An execution shall direct that only the property in which a named judgment debtor or obligor who is not deceased has an interest, or the debts owed to the named judgment debtor or obligor, be levied upon or sold thereunder and shall specify the last known address of that judgment debtor or obligor.  Except in cases when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that in those instances the execution contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”, an execution notice shall state that, pursuant to subdivision (l) of section fifty-two hundred five of this article, two thousand five hundred dollars of an account containing direct deposit or electronic payments reasonably identifiable as statutorily exempt payments, as defined in paragraph two of subdivision (l) of section fifty-two hundred five of this article, is exempt from execution and that the garnishee cannot levy upon or restrain two thousand five hundred dollars in such an account.  Except in cases when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that in those instances the execution contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”, an execution notice shall likewise state that pursuant to subdivision (i) of section fifty-two hundred twenty-two of this article, an execution shall not apply to an amount equal to or less than ninety percent of the greater of two hundred forty times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938   1 or two hundred forty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable, except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents.  Where the judgment or order was entered in a court other than the supreme, county or a family court, the execution shall also specify the date on which a transcript of the judgment or order was filed with the clerk of the county in which the judgment was entered.  Where jurisdiction in the action was based upon a levy upon property or debt pursuant to an order of attachment, the execution shall also state that fact, describe all property and debts levied upon, and direct that only such property and debts be sold thereunder.  Where the judgment or order was recovered for all or part of a mortgage debt, the execution shall also describe the mortgaged property, specify the book and page where the mortgage is recorded, and direct that no part of the mortgaged property be levied upon or sold thereunder.

(b) Issuance.  At any time before a judgment or order is satisfied or vacated, an execution may be issued from the supreme court, county court or a family court, in the county in which the judgment was first docketed, by the clerk of the court or the attorney for the judgment creditor as officer of the court, to the sheriffs of one or more counties of the state, directing each of them to satisfy the judgment or order out of the real and personal property of the judgment debtor or obligor and the debts due to him or her.  Where the judgment or order is for support and is payable to the support collection unit designated by the appropriate social services district, such unit shall be authorized to issue the execution and to satisfy the judgment or order out of the real and personal property of the judgment debtor or obligor and the debts due to him or her.

(c) Return.  An execution shall be returned to the clerk of the court from which it was issued or to the support collection unit within sixty days after issuance unless the execution has been served in accordance with section 5231 or subdivision (a) of section 5232 . The time may be extended in writing for a period of not more than sixty additional days by the attorney for the judgment creditor or by the support collection unit.  Further like extensions may be given by the attorney for the judgment creditor or by the support collection unit unless another execution against the same judgment debtor or obligor has been delivered to the same enforcement officer and has not been returned.

(d) Records of sheriff or support collection unit.  Each sheriff or support collection unit shall keep a record of executions delivered showing the names of the parties and the judgment debtor or obligor;  the dates of issue and return;  the date and time of delivery, which shall be endorsed upon the execution;  the amount due at the time the execution was delivered;  and the amount of the judgment or order and of the sheriff’s fees unpaid, if any, at the time of the return.

(e) For the purposes of this section “order” shall mean an order issued by a court of competent jurisdiction directing the payment of support, alimony or maintenance upon which a “default” as defined in paragraph seven of subdivision (a) of section fifty-two hundred forty-one of this article has been established subject to the procedures established for the determination of a “mistake of fact” for income executions pursuant to subdivision (e) of section fifty-two hundred forty-one of this article, except that for the purposes of this section only, a default shall not be founded upon retroactive child support obligations as defined in paragraph (a) of subdivision one of section four hundred forty of the family court act and subdivision one of section two hundred forty , and paragraph b of subdivision nine of section two hundred thirty-six of the domestic relations law .

1 29 USCA § 201 et seq.

NY CPLR § 5231. INCOME EXECUTION

(a) Form.  An income execution shall specify, in addition to the requirements of subdivision (a) of section 5230 , the name and address of the person or entity from whom the judgment debtor is receiving or will receive money;  the amount of money, the frequency of its payment and the amount of the installments to be collected therefrom;  and shall contain a notice to the judgment debtor that he or she shall commence payment of the installments specified to the sheriff forthwith and that, upon his or her default, the execution will be served upon the person or entity from whom he or she is receiving or will receive money.

(b) Issuance.  Where a judgment debtor is receiving or will receive money from any source, an income execution for installments therefrom of not more than ten percent thereof may be issued and delivered to the sheriff of the county in which the judgment debtor resides or, where the judgment debtor is a non-resident, the county in which he is employed;  provided, however, that (i) no amount shall be withheld from the judgment debtor’s earnings pursuant to an income execution for any week unless the disposable earnings of the judgment debtor for that week exceed the greater of thirty times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938   1 or thirty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable;  (ii) the amount withheld from the judgment debtor’s earnings pursuant to an income execution for any week shall not exceed twenty-five percent of the disposable earnings of the judgment debtor for that week, or, the amount by which the disposable earnings of the judgment debtor for that week exceed the greater of thirty times the federal minimum hourly wage prescribed by the Fair Labor Standards Act of 1938 or thirty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable, whichever is less;  (iii) if the earnings of the judgment debtor are also subject to deductions for alimony, support or maintenance for family members or former spouses pursuant to section five thousand two hundred forty-one or section five thousand two hundred forty-two of this article, the amount withheld from the judgment debtor’s earnings pursuant to this section shall not exceed the amount by which twenty-five percent of the disposable earnings of the judgment debtor for that week exceeds the amount deducted from the judgment debtor’s earnings in accordance with section five thousand two hundred forty-one or section five thousand two hundred forty-two of this article.  Nothing in this section shall be construed to modify, abrogate, impair, or affect any exemption from the satisfaction of a money judgment otherwise granted by law.

(c) Definition of earnings and disposable earnings.  (i) As used herein earnings means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(ii) As used herein disposable earnings means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

(d) Service upon debtor;  first service by sheriff.  Within twenty days after an income execution is delivered to the sheriff, the sheriff shall serve a copy of it upon the judgment debtor, in the same manner as a summons or, in lieu thereof, by certified mail return receipt requested provided an additional copy is sent by regular mail to the debtor.  If service is by mail as herein provided, the person effecting service shall retain the receipt together with a post office certificate of mailing as proof of such service.

(e) Levy upon default or failure to serve debtor;  second service by sheriff.  If a judgment debtor fails to pay installments pursuant to an income execution served upon him or her for a period of twenty days, or if the sheriff is unable to serve an income execution upon the judgment debtor within twenty days after the execution is delivered to the sheriff, the sheriff shall levy upon the money that the judgment debtor is receiving or will receive by serving a copy of the income execution, indorsed to indicate the extent to which paid installments have satisfied the judgment, upon the person or entity from whom the judgment debtor is receiving or will receive money.  The income execution shall be served personally within any county in which the person or entity from whom the judgment debtor is receiving or will receive money has an office or place of business in the same manner as a summons, or by certified mail return receipt requested, except that such service shall not be made by delivery to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318 .

(f) Withholding of installments.  A person served with an income execution shall withhold from money then or thereafter due to the judgment debtor installments as provided therein and pay them over to the sheriff.  If such person shall fail to so pay the sheriff, the judgment creditor may commence a proceeding against him for accrued installments.  If the money due to the judgment debtor consists of salary or wages and his employment is terminated by resignation or dismissal at any time after service of the execution, the levy shall thereafter be ineffective, and the execution shall be returned, unless the debtor is reinstated or re-employed within ninety days after such termination.

(g) Statement on income execution.  Any income execution delivered to the sheriff on or after the effective date of this act shall contain the following statement:

THIS INCOME EXECUTION DIRECTS THE WITHHOLDING OF UP TO TEN PERCENT OF THE JUDGMENT DEBTOR’S GROSS INCOME. IN CERTAIN CASES, HOWEVER, STATE OR FEDERAL LAW DOES NOT PERMIT THE WITHHOLDING OF THAT MUCH OF THE JUDGMENT DEBTOR’S GROSS INCOME. THE JUDGMENT DEBTOR IS REFERRED TO NEW YORK CIVIL PRACTICE LAW AND RULES § 5231 AND 15 UNITED STATES CODE § 1671 ET SEQ.

I. LIMITATIONS ON THE AMOUNT THAT CAN BE WITHHELD.

  • A. AN INCOME EXECUTION FOR INSTALLMENTS FROM A JUDGMENT DEBTOR’S GROSS INCOME CANNOT EXCEED TEN PERCENT (10%) OF THE JUDGMENT DEBTOR’S GROSS INCOME.
  • B. IF A JUDGMENT DEBTOR’S WEEKLY DISPOSABLE EARNINGS ARE LESS THAN THIRTY (30) TIMES THE CURRENT FEDERAL MINIMUM WAGE (        , PER HOUR), OR (        ), NO DEDUCTION CAN BE MADE FROM THE JUDGMENT DEBTOR’S EARNINGS UNDER THIS INCOME EXECUTION.
  • C. A JUDGMENT DEBTOR’S WEEKLY DISPOSABLE EARNINGS CANNOT BE REDUCED BELOW THE AMOUNT ARRIVED AT BY MULTIPLYING THIRTY (30) TIMES THE CURRENT FEDERAL MINIMUM WAGE (        , PER HOUR), OR (        ), UNDER THIS INCOME EXECUTION.
  • D. IF DEDUCTIONS ARE BEING MADE FROM A JUDGMENT DEBTOR’S EARNINGS UNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS OR FORMER SPOUSES, AND THOSE DEDUCTIONS EQUAL OR EXCEED TWENTY-FIVE PERCENT (25%) OF THE JUDGMENT DEBTOR’S DISPOSABLE EARNINGS, NO DEDUCTION CAN BE MADE FROM THE JUDGMENT DEBTOR’S EARNINGS UNDER THIS INCOME EXECUTION.
  • E. IF DEDUCTIONS ARE BEING MADE FROM A JUDGMENT DEBTOR’S EARNINGS UNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS OR FORMER SPOUSES, AND THOSE DEDUCTIONS ARE LESS THAN TWENTY-FIVE PERCENT (25%) OF THE JUDGMENT DEBTOR’S DISPOSABLE EARNINGS, DEDUCTIONS MAY BE MADE FROM THE JUDGMENT DEBTOR’S EARNINGS UNDER THIS INCOME EXECUTION. HOWEVER, THE AMOUNT ARRIVED AT BY ADDING THE DEDUCTIONS FROM EARNINGS MADE UNDER THIS EXECUTION TO THE DEDUCTIONS MADE FROM EARNINGS UNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS OR FORMER SPOUSES CANNOT EXCEED TWENTY-FIVE PERCENT (25%) OF THE JUDGMENT DEBTOR’S DISPOSABLE EARNINGS.

NOTE:  NOTHING IN THIS NOTICE LIMITS THE PROPORTION OR AMOUNT WHICH MAY BE DEDUCTED UNDER ANY ORDER FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS OR FORMER SPOUSES.

II. EXPLANATION OF LIMITATIONS

DEFINITIONS:

DISPOSABLE EARNINGS

DISPOSABLE EARNINGS ARE THAT PART OF AN INDIVIDUAL’S EARNINGS LEFT AFTER DEDUCTING THOSE AMOUNTS THAT ARE REQUIRED BY LAW TO BE WITHHELD (FOR EXAMPLE, TAXES, SOCIAL SECURITY, AND UNEMPLOYMENT INSURANCE, BUT NOT DEDUCTIONS FOR UNION DUES, INSURANCE PLANS, ETC.).

GROSS INCOME

GROSS INCOME IS SALARY, WAGES OR OTHER INCOME, INCLUDING ANY AND ALL OVERTIME EARNINGS, COMMISSIONS, AND INCOME FROM TRUSTS, BEFORE ANY DEDUCTIONS ARE MADE FROM SUCH INCOME.

ILLUSTRATIONS REGARDING EARNINGS:

IF DISPOSABLE EARNINGS IS:

AMOUNT TO PAY OR DEDUCT FROM EARNINGS UNDER THIS INCOME EXECUTION IS:

 

 

(a) 30 TIMES FEDERAL MINIMUM WAGE (     ) OR LESS

NO PAYMENT OR DEDUCTION ALLOWED

 

 

(b) MORE THAN 30 TIMES FEDERAL MINIMUM WAGE (     ) AND LESS THAN 40 TIMES FEDERAL MINIMUM WAGE (     )

THE LESSER OF:  THE EXCESS OVER 30 TIMES THE FEDERAL MINIMUM WAGE (     ) IN DISPOSABLE EARNINGS, or 10% OF GROSS EARNINGS

 

 

(c) 40 TIMES THE FEDERAL MINIMUM WAGE (     ) OR MORE

THE LESSER OF:  25% OF DISPOSABLE EARNINGS OR 10% OF GROSS EARNINGS.

III. NOTICE:  YOU MAY BE ABLE TO CHALLENGE THIS INCOME EXECUTION THROUGH THE PROCEDURES PROVIDED IN CPLR § 5231 (i) AND CPLR § 5240

IF YOU THINK THAT THE AMOUNT OF YOUR INCOME BEING DEDUCTED UNDER THIS INCOME EXECUTION EXCEEDS THE AMOUNT PERMITTED BY STATE OR FEDERAL LAW, YOU SHOULD ACT PROMPTLY BECAUSE THE MONEY WILL BE APPLIED TO THE JUDGMENT. IF YOU CLAIM THAT THE AMOUNT OF YOUR INCOME BEING DEDUCTED UNDER THIS INCOME EXECUTION EXCEEDS THE AMOUNT PERMITTED BY STATE OR FEDERAL LAW, YOU SHOULD CONTACT YOUR EMPLOYER OR OTHER PERSON PAYING YOUR INCOME. FURTHER, YOU MAY CONSULT AN ATTORNEY, INCLUDING LEGAL AID IF YOU QUALIFY. NEW YORK STATE LAW PROVIDES TWO PROCEDURES THROUGH WHICH AN INCOME EXECUTION CAN BE CHALLENGED:

CPLR § 5231(i)  MODIFICATION AT ANY TIME, THE JUDGMENT DEBTOR MAY MAKE A MOTION TO A COURT FOR AN ORDER MODIFYING AN INCOME EXECUTION.

CPLR § 5240 MODIFICATION OR PROTECTIVE ORDER:  SUPERVISION OF ENFORCEMENT AT ANY TIME, THE JUDGMENT DEBTOR MAY MAKE A MOTION TO A COURT FOR AN ORDER DENYING, LIMITING, CONDITIONING, REGULATING, EXTENDING OR MODIFYING THE USE OF ANY POST-JUDGMENT ENFORCEMENT PROCEDURE, INCLUDING THE USE OF INCOME EXECUTIONS.

(h) Levy upon money payable by municipal corporation or the state.  The levy of an income execution served upon a municipal or public benefit corporation, or board of education, shall be effective fifteen days after such service.  Such an execution shall specify the title or position of the judgment debtor and the bureau, office, department or subdivision in which he is employed and the municipal or public benefit corporation, or board of education, shall be entitled to a fee of two dollars upon being served.  A levy upon money payable directly by a department of the state, or by an institution under its jurisdiction, shall be made by serving the income execution upon the head of the department, or upon a person designated by him, at the office of the department in Albany;  a levy upon money payable directly upon the state comptroller’s warrant, or directly by a state board, commission, body or agency which is not within any department of the state, shall be made by serving the income execution upon the state department of audit and control at its office in Albany.  Service at the office of a department of the state in Albany may be made by the sheriff of any county by registered or certified mail, return receipt requested.

(i) Modification.  At any time, the judgment creditor or the judgment debtor may move, upon such notice as the court may direct, for an order modifying an income execution.

(j) Priority;  delivery to another sheriff.  Two or more income executions issued against the same judgment debtor, specifying the same person or entity from whom the money is received and delivered to the same or different enforcement officers shall be satisfied out of that money in the order in which the executions are delivered to an officer authorized to levy in the county, town or city in which the debtor resides or, in any county in which the person or entity from whom the judgment debtor is receiving or will receive money has an office or place of business, or where the judgment debtor is a non-resident, the county, town or city in which he or she is employed.  If an income execution delivered to a sheriff is returned unsatisfied in whole or in part because the sheriff to whom it was delivered is unable to find within the county the person or entity from whom the judgment debtor is receiving or will receive money, the execution may be delivered to the sheriff of any county in which such person or entity has an office or place of business.  The priority of an income execution delivered to a sheriff within twenty days after its return by each previous sheriff shall be determined by the time of delivery to the first sheriff.

(k) Accounting by sheriff.  It shall be the duty of the sheriff to whom such income execution shall be delivered, from time to time and at least once every ninety days from the time a levy shall be made thereunder, to account for and pay over to the person entitled thereto all monies collected thereon, less his lawful fees and expenses for collecting the same.

1 29 USCA § 201 et seq.

NY CPLR § 5232. LEVY UPON PERSONAL PROPERTY

 (a) Levy by service of execution.  The sheriff or support collection unit designated by the appropriate social services district shall levy upon any interest of the judgment debtor or obligor in personal property not capable of delivery, or upon any debt owed to the judgment debtor or obligor, by serving a copy of the execution upon the garnishee, in the same manner as a summons, except that such service shall not be made by delivery to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318 . In the event the garnishee is the state of New York, such levy shall be made in the same manner as an income execution pursuant to section 5231 of this article.  A levy by service of the execution is effective only if, at the time of service, the person served owes a debt to the judgment debtor or obligor or he or she is in the possession or custody of property not capable of delivery in which he or she knows or has reason to believe the judgment debtor or obligor has an interest, or if the judgment creditor or support collection unit has stated in a notice which shall be served with the execution that a specified debt is owed by the person served to the judgment debtor or obligor or that the judgment debtor or obligor has an interest in specified property not capable of delivery in the possession or custody of the person served.  All property not capable of delivery in which the judgment debtor or obligor is known or believed to have an interest then in or thereafter coming into the possession or custody of such a person, including any specified in the notice, and all debts of such a person, including any specified in the notice, then due or thereafter coming due to the judgment debtor or obligor, shall be subject to the levy.  The person served with the execution shall forthwith transfer all such property, and pay all such debts upon maturity, to the sheriff or to the support collection unit and execute any document necessary to effect the transfer or payment.  After such transfer or payment, property coming into the possession or custody of the garnishee, or debt incurred by him, or her shall not be subject to the levy.  Until such transfer or payment is made, or until the expiration of ninety days after the service of the execution upon him or her, or of such further time as is provided by any order of the court served upon him or her, whichever event first occurs, the garnishee is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff or the support collection unit, except upon direction of the sheriff or the support collection unit or pursuant to an order of the court.  At the expiration of ninety days after a levy is made by service of the execution, or of such further time as the court, upon motion of the judgment creditor or support collection unit has provided, the levy shall be void except as to property or debts which have been transferred or paid to the sheriff or to the support collection unit or as to which a proceeding under sections 5225 or 5227 has been brought.  A judgment creditor who, or support collection unit which, has specified personal property or debt to be levied upon in a notice served with an execution shall be liable to the owner of the property or the person to whom the debt is owed, if other than the judgment debtor or obligor, for any damages sustained by reason of the levy.

(b) Levy by seizure.  The sheriff or support collection unit of the appropriate social services district shall levy upon any interest of the judgment debtor in personal property capable of delivery by taking the property into custody without interfering with the lawful possession of pledgees and lessees.  The sheriff or support collection unit shall forthwith serve a copy of the execution in the manner prescribed by subdivision (a) upon the person from whose possession or custody the property was taken.

(c) Notice to judgment debtor or obligor.  Where an execution does not state that a notice in the form presented by subdivision (e) of section fifty-two hundred twenty-two of this chapter has been duly served upon the judgment debtor or obligor within a year, the sheriff or support collection unit shall, not later than four days after service of the execution upon any garnishee, mail by first class mail, or personally deliver, to each judgment debtor or obligor who is a natural person, a copy of the execution together with such notice.  The sheriff or support collection unit shall specify on the notice to judgment debtor or obligor the name and address of the judgment creditor or the judgment creditor’s attorney or the support collection unit.  The notice shall be mailed to the judgment debtor or obligor at his or her residence address;  and in the event such mailing is returned as undeliverable by the post office, or if the residence address of the judgment debtor or obligor is unknown, then to the judgment debtor or obligor in care of the place of employment of the judgment debtor or obligor if known, in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by the return address or otherwise, that the communication is from a sheriff or support collection unit or concerns a debt;  or if neither the residence nor the place of employment of the judgment debtor or obligor is known, then to the judgment debtor or obligor at any other known address.

(d) For the purposes of this section “obligor” shall mean an individual other than a judgment debtor obligated to pay support, alimony or maintenance pursuant to an order of a court of competent jurisdiction who has been found to be in “default” of such order as such term is defined in paragraph seven of subdivision (a) of section fifty-two hundred forty-one of this article and the establishment of such default has been subject to the procedures established for the determination of a “mistake of fact” for income executions pursuant to subdivision (e) of section fifty-two hundred forty-one of this article, except that for the purposes of this section only, a default shall not be founded upon retroactive child support obligations as defined in paragraph (c) of subdivision one of section four hundred forty and subdivision one of section two hundred forty , and paragraph b of subdivision nine of section two hundred thirty-six of the domestic relations law .

(e) Notwithstanding the provisions of subdivision (a) of this section, if direct deposit or electronic payments reasonably identifiable as statutorily exempt payments as defined in paragraph two of subdivision (l) of section fifty-two hundred five of this article were made to the judgment debtor’s account during the forty-five day period preceding the date that the execution notice was served on the garnishee banking institution, then a garnishee banking institution shall not execute, levy, attach, garnish or otherwise restrain or encumber two thousand five hundred dollars in the judgment debtor’s account.  Notwithstanding the provisions of subdivision (a) of this section, an execution shall not apply to an amount equal to or less than the greater of two hundred forty times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938   1 or two hundred forty times the state minimum hourly wage prescribed in section six hundred fifty-two of the labor law as in effect at the time the earnings are payable (as published on the websites of the United States department of labor and the state department of labor) except such part thereof as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents.  This amount shall be equal to seventeen hundred sixteen dollars on the effective date of this subdivision, and shall rise to seventeen hundred forty dollars on July twenty-fourth, two thousand nine, and shall rise thereafter in tandem with the minimum wage.  Nothing in this subsection shall be construed to limit a banking institution’s right or obligation to restrain, remove or execute upon such funds from the judgment debtor’s account if required by 42 U.S.C. § 659 or 38 U.S.C. § 5301 or to enforce a child support, spousal support, alimony or maintenance obligation or by a court order.  Nothing in this subdivision shall alter the exempt status of funds that are protected from execution, levy, attachment, garnishment, or other legal process, under section fifty-two hundred five of this article or under any other provision of state or federal law, or affect the right of a judgment debtor to claim such exemption.

(f) Fee for banking institution’s costs in processing a levy by service of execution when account contains only exempt, direct deposit or electronic payments.  In the event that a banking institution cannot lawfully garnish or execute upon on a judgment debtor’s banking institution account or funds are garnished or executed upon in violation of any section of this chapter, the banking institution shall charge no fee to the judgment debtor regardless of any terms of agreement, or schedule of fees, or other contract between the judgment debtor and the banking institution.

(g) Where a levy by execution pursuant to this section is made against a natural person’s account at a banking institution, the sheriff or support collection unit shall serve the banking institution with the exemption notice and two exemption claim forms prescribed in subdivision (b) of section fifty-two hundred twenty-two-a of this article.  The notice and forms must be served upon the banking institution simultaneously with the execution and section fifty-two hundred twenty-two-a of this article shall apply, and all procedures stated therein must be followed.  The banking institution shall not transfer the funds in the account to the sheriff or support collection unit for at least twenty-seven days.  If, after thirty days, the banking institution has not received an exemption claim form from the judgment debtor, or a court order directing otherwise, it may thereafter transfer the funds to the sheriff or support collection unit.

(h) The provisions of subdivisions (e), (f) and (g) of this section do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony provided that in those instances the execution contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language:  “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”

1 29 USCA § 201 et seq.

NY CPLR § 5233. SALE OF PERSONAL PROPERTY

(a) Public auction.  The interest of the judgment debtor in personal property obtained by a sheriff pursuant to execution or order, other than legal tender of the United States, shall be sold by the sheriff at public auction at such time and place and as a unit or in such lots, or combination thereof, as in his judgment will bring the highest price, but no sale may be made to that sheriff or to his deputy or undersheriff.  The property shall be present and within the view of those attending the sale unless otherwise ordered by the court.

(b) Public notice.  A printed notice of the time and place of the sale shall be posted at least six days before the sale in three public places in the town or city in which the sale is to be held, provided however, in the city of New York, in lieu of posting such notice may be advertised in the auction columns of any morning newspaper published daily and Sunday in such city an edition of which appears on the newsstands the previous night and has a circulation of not less than three hundred thousand.  An omission to so post or advertise notice, or the defacing or removal of a posted notice, does not affect the title of a purchaser without notice of the omission or offense.

(c) Order for immediate sale or disposition.  The court may direct immediate sale or other disposition of property with or without notice if the urgency of the case requires.

(d) Unsaleable material.  If property seized by the sheriff is considered by him to be material which, by law, may not be sold, he shall apply to the court for a determination whether the property can legally be sold.  Reasonable notice of such application shall also be given to the owner of such property.  If the court decides the property may not be legally sold, it shall order appropriate disposition of the property which may include its destruction.

NY CPLR § 5234. DISTRIBUTION OF PROCEEDS OF PERSONAL PROPERTY; PRIORITIES

(a) Distribution of proceeds of personal property.  After deduction for and payment of fees, expenses and any taxes levied upon sale, delivery, transfer or payment, the proceeds of personal property or debt acquired by a receiver or a sheriff or other officer authorized to enforce the judgment shall be distributed to the judgment creditor and any excess shall be paid over to the judgment debtor.  No distribution of proceeds shall be made until fifteen days after service of the execution except upon order of the court.

(b) Priority among execution creditors.  Where two or more executions or orders of attachment are issued against the same judgment debtor or obligor and delivered to the same enforcement officer or issued by the support collection unit designated by the appropriate social services district, they shall be satisfied out of the proceeds of personal property or debt levied upon by the officer or by the support collection unit in the order in which they were delivered, such executions for child support shall have priority over any other assignment, levy or process. Where two or more executions or orders of attachment are issued against the same judgment debtor or obligor and delivered to different enforcement officers, and personal property or debt is levied upon within the jurisdiction of all of the officers, the proceeds shall be first applied in satisfaction of the execution or order of attachment delivered to the officer who levied, and thereafter shall be applied in satisfaction of the executions or orders of attachment delivered to those of the other officers who, before the proceeds are distributed, make a demand upon the officer who levied, in the order of such demands, except that such executions for child support shall have priority over any other assignment, levy or process.  Where there is more than one past-due child support order, the proceeds shall be applied to the orders in proportion to the amount each order’s claim bears to the combined total.  Nothing herein shall be deemed to defeat or impair the rights of any secured party as such term is defined in paragraph seventy-two of subsection (a) of section 9-102 of the uniform commercial code .  An execution or order of attachment returned by an officer before a levy or delivered to him after the proceeds of the levy have been distributed shall not be satisfied out of those proceeds.

(c) Priority of other judgment creditors.  Where personal property or debt has been ordered delivered, transferred or paid, or a receiver thereof has been appointed by order, or a receivership has been extended thereto by order, and the order is filed before the property or debt is levied upon, the rights of the judgment creditor who secured the order are superior to those of the judgment creditor entitled to the proceeds of the levy.  Where two or more such orders affecting the same interest in personal property or debt are filed, the proceeds of the property or debt shall be applied in the order of filing.  Where delivery, transfer, or payment to the judgment creditor, a receiver, or a sheriff or other officer is not completed within sixty days after an order is filed, the judgment creditor who secured the order is divested of priority, unless otherwise specified in the order or in an extension order filed within the sixty days.

NY CPLR § 5235. LEVY UPON REAL PROPERTY

After the expiration of ten years after the filing of the judgment-roll, the sheriff shall levy upon any interest of the judgment debtor in real property, pursuant to an execution other than one issued upon a judgment for any part of a mortgage debt upon the property, by filing with the clerk of the county in which the property is located a notice of levy describing the judgment, the execution and the property.  The clerk shall record and index the notice against the name of the judgment debtor, or against the property, in the same books, and in the same manner as a notice of the pendency of an action.

NY CPLR § 5236. SALE OF REAL PROPERTY

(a) Time of sale;  public auction.  Between the fifty-sixth and the sixty-third day after the first publication of a copy of the notice of sale, unless the time is extended by order or the sale postponed by the sheriff, the interest of the judgment debtor in real property which has been levied upon under an execution delivered to the sheriff or which was subject to the lien of the judgment at the time of such delivery shall be sold by the sheriff pursuant to the execution at public auction at such time and place within the county where the real property is situated and as a unit or in such parcels, or combination thereof, as in his judgment will bring the highest price, but no sale may be made to that sheriff or to his deputy or undersheriff.  If the property is situated in more than one county, it may be sold in a county in which any part is situated, unless the court orders otherwise.

(b) Sale of mortgaged property.  Real property mortgaged shall not be sold pursuant to an execution issued upon a judgment recovered for all or part of the mortgage debt.

(c) Notice of sale.  A printed notice of the time and place of the sale containing a description of the property to be sold shall be posted at least fifty-six days before the sale in three public places in the town or city in which the property is located, and, if the sale is to be held in another town or city, in three public places therein.  Service by the sheriff of a copy of said notice on the judgment debtor shall be made as provided in section 308 .  A list containing the name and address of the judgment debtor and of every judgment creditor whose judgment was a lien on the real property to be sold and of every person who had of record any interest in or lien on such property forty-five days prior to the day fixed for the sale shall be furnished the sheriff by the judgment creditor, and each person on the list shall be served by the sheriff with a copy of the notice by personal delivery or by registered or certified mail, return receipt requested, at least thirty days prior to the day fixed for the sale.  A copy of the notice shall be published at least once in each of four periods of fourteen successive days, the first of which periods may be measured from any day between the fifty-sixth and sixty-third days, preceding the time fixed for the sale in a newspaper published in the county in which the property is located or, if there is none, in a newspaper published in an adjoining county.  An omission to give any notice required by this or the following subdivision, or the defacing or removal of a notice posted pursuant to either, does not affect the title of a purchaser without notice of the omission or offense.

(d) Notice of postponement of sale.  Any person may, in a writing served on the sheriff either by personal delivery or by registered or certified mail, return receipt requested, request that the sheriff notify him in the event that a scheduled sale is postponed.  Such writing shall contain the person’s name and mailing address.  If the sale is for any reason postponed, notice of the postponed date need be given only to:

  1. those whose requests, made as above provided, have been received by the sheriff at least five days prior to the postponed date,
  2. those who appeared at the time and place previously appointed for the sale, and
  3. the judgment debtor at his last known address.

The notice may be served either by personal delivery or by registered or certified mail, return receipt requested.  Unless the court shall otherwise direct, it need not be posted or published.

(e) Effect of notice as against judgment creditors.  A judgment creditor duly notified pursuant to subdivisions (c) or (d) who fails to deliver an execution to the sheriff prior to the sale shall have no further lien on the property and, except as against the judgment debtor, no further interest in the proceeds of the sale.

(f) Conveyance;  proof of notice.  Within ten days after the sale, the sheriff shall execute and deliver to the purchaser proofs of publication, service and posting of the notice of sale, and a deed which shall convey the right, title and interest sold.  Such proofs may be filed and recorded in the office of the clerk of the county where the property is located.

(g) Disposition of proceeds of sale.  After deduction for and payment of fees, expenses and any taxes levied on the sale, transfer or delivery, the sheriff making a sale of real property pursuant to an execution shall, unless the court otherwise directs,

  1. distribute the proceeds to the judgment creditors who have delivered executions against the judgment debtor to the sheriff before the sale, which executions have not been returned, in the order in which their judgments have priority, and
  2. pay over any excess to the judgment debtor.

NY CPLR § 5237. FAILURE OF TITLE TO PROPERTY SOLD

The purchaser of property sold by a sheriff pursuant to execution or order may recover the purchase money from the judgment creditors who received the proceeds if the property is recovered from such purchaser in consequence of an irregularity in the sale or a vacatur, reversal or setting aside of the judgment upon which the execution or order was based.  If a judgment for the purchase money is so recovered against a judgment creditor in consequence of an irregularity in the sale, such judgment creditor may enforce his judgment as if no levy or sale had been made, and, for that purpose, he may move without notice for an order restoring any lien or priority or amending any docket entry affected by the sale.

NY CPLR § 5238. DIRECTIONS TO THE SHERIFF

Upon motion of any party, on notice to the sheriff and all other parties, the court may direct the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt, or the proceeds thereof, or to file additional returns, subject to the payment of the sheriff’s fees and expenses.  As far as practicable, the court shall direct that notice of the motion be given to any other judgment creditors, at the addresses shown on the judgment docket and to any persons who have secured orders of attachment affecting any property or debt, or the proceeds thereof, sought to be returned or released.

NY CPLR § 5239. PROCEEDING TO DETERMINE ADVERSE CLAIMS

Prior to the application of property or debt by a sheriff or receiver to the satisfaction of a judgment, any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt.  Service of process in such a proceeding shall be made by service of a notice of petition upon the respondent, the sheriff or receiver, and such other person as the court directs, in the same manner as a notice of motion.  The proceeding may be commenced in the county where the property was levied upon, or in a court or county specified in subdivision (a) of section 5221 . The court may vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded.  Where there appear to be disputed questions of fact, the court shall order a separate trial, indicating the person who shall have possession of the property pending a decision and the undertaking, if any, which such person shall give.  If the court determines that any claim asserted was fraudulent, it may require the claimant to pay to any party adversely affected thereby the reasonable expenses incurred by such party in the proceeding, including reasonable attorneys’ fees, and any other damages suffered by reason of the claim.  The court may permit any interested person to intervene in the proceeding.

NY CPLR § 5240. MODIFICATION OR PROTECTIVE ORDER; SUPERVISION OF ENFORCEMENT

The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. Section 3104 is applicable to procedures under this article.

 

NY CPLR § 5241. INCOME EXECUTION FOR SUPPORT ENFORCEMENT

(a) Definitions. As used in this section and in section fifty-two hundred forty-two of this chapter, the following terms shall have the following meanings:

  1. “Order of support” means any temporary or final order, judgment, agreement or stipulation incorporated by reference in such judgment or decree in a matrimonial action or family court proceeding, or any foreign support order, judgment or decree, registered pursuant to article five-B of the family court act which directs the payment of alimony, maintenance, support or child support.
  2. “Debtor” means any person directed to make payments by an order of support.
  3. “Creditor” means any person entitled to enforce an order of support, including a support collection unit.
  4. “Employer” means any employer, future employer, former employer, union or employees’ organization.
  5. “Income payor” includes:
    • (i) the auditor, comptroller, trustee or disbursing officer of any pension fund, benefit program, policy of insurance or annuity;
    • (ii) the state of New York or any political subdivision thereof, or the United States;  and
    • (iii) any person, corporation, trustee, unincorporated business or association, partnership, financial institution, bank, savings and loan association, credit union, stock purchase plan, stock option plan, profit sharing plan, stock broker, commodities broker, bond broker, real estate broker, insurance company, entity or institution.
  6. “Income” includes any earned, unearned, taxable or non-taxable income, benefits, or periodic or lump sum payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability benefits, unemployment insurance benefits, payments pursuant to a public or private pension or retirement program, federal social security benefits as defined in 42 U.S.C. section 662(f) (2) , and interest, but excluding public assistance benefits paid pursuant to the social services law and federal supplemental security income.  1
  7. “Default” means the failure of a debtor to remit to a creditor three payments on the date due in the full amount directed by the order of support, or the accumulation of arrears equal to or greater than the amount directed to be paid for one month, whichever first occurs.
  8. “Mistake of fact” means an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.
  9. “Support collection unit” means any support collection unit established by a social services district pursuant to the provisions of section one hundred eleven-h of the social services law .“Date of withholding” means the date on which the income would otherwise have been paid or made available to the debtor were it not withheld by the employer or income payor.
  10. “Date of withholding” means the date on which the income would otherwise have been paid or made available to the debtor were it not withheld by the employer or income payor.
  11. “Health insurance benefits” means any medical, dental, optical and prescription drugs and health care services or other health care benefits which may be provided for dependents through an employer or organization, including such employers or organizations which are self-insured.
  12. “Business day” means a day on which state offices are open for regular business.
  13. “Issuer” means a support collection unit, sheriff, the clerk of court, or the attorney for the creditor.

(b) Issuance. 

  1. When a debtor is in default, an execution for support enforcement may be issued by the support collection unit, or by the sheriff, the clerk of court or the attorney for the creditor as an officer of the court.  Where a debtor is receiving or will receive income, an execution for deductions therefrom in amounts not to exceed the limits set forth in subdivision (g) of this section may be served upon an employer or income payor after notice to the debtor.  The amount of the deductions to be withheld shall be sufficient to ensure compliance with the direction in the order of support, and shall include an additional amount to be applied to the reduction of arrears.  The issuer may amend the execution before or after service upon the employer or income payor to reflect additional arrears or payments made by the debtor after notice pursuant to subdivision (d) of this section, or to conform the execution to the facts found upon a determination made pursuant to subdivision (e) of this section.
    • (i) Where the court orders the debtor to provide health insurance benefits for specified dependents, an execution for medical support enforcement may, except as provided for herein, be issued by the support collection unit, or by the sheriff, the clerk of court or the attorney for the creditor as an officer of the court;  provided, however, that when the court issues an order of child support or combined child and spousal support on behalf of persons other than those in receipt of public assistance or in receipt of services pursuant to section one hundred eleven-g of the social services law , such medical execution shall be in the form of a separate qualified medical child support order as provided by subdivision (j) of section four hundred sixteen of the family court act and paragraph (h) of subdivision one of section two hundred forty of the domestic relations law .  Such execution for medical support enforcement may require the debtor’s employer, organization or group health plan administrator to purchase on behalf of the debtor and the debtor’s dependents such available health insurance benefits.  Such execution shall direct the employer, organization or group health plan administrator to provide to the dependents for whom such benefits are required to be provided or such dependents’ custodial parent or legal guardian or social services district on behalf of persons applying for or in receipt of public assistance any identification cards and benefit claim forms and to withhold from the debtor’s income the employee’s share of the cost of such health insurance benefits, and to provide written confirmation of such enrollment indicating the date such benefits were or become available or that such benefits are not available and the reasons therefor to the issuer of the execution.  An execution for medical support enforcement shall not require a debtor’s employer, organization or group health plan administrator to purchase or otherwise acquire health insurance or health insurance benefits that would not otherwise be available to the debtor by reason of his or her employment or membership.  Nothing herein shall be deemed to obligate or otherwise hold any employer, organization or group health plan administrator responsible for an option exercised by the debtor in selecting medical insurance coverage by an employee or member
    • (ii) Where the child support order requires the debtor to provide health insurance benefits for specified dependents, and where the debtor provides such coverage and then changes employment, and the new employer provides health care coverage, an amended execution for medical support enforcement may be issued by the support collection unit, or by the sheriff, the clerk of the court or the attorney for the creditor as an officer of the court without any return to court.  The issuance of the amended execution shall transfer notice of the requirements of the order and the execution to the new employer, organization or group health plan administrator, and shall have the same effect as the original execution for medical support issued pursuant to this section unless the debtor contests the execution
  3. Any inconsistent provisions of this title or other law notwithstanding, in any case in which a parent is required by a court order to provide health coverage for a child and the parent is eligible for health insurance benefits as defined in this section through an employer or organization, including those which are self-insured, doing business in the state, such employer or organization must, in addition to implementing the provisions of a medical support execution:
  • (i) permit such parent to immediately enroll under such health insurance benefit coverage any such dependent who is otherwise eligible for such coverage without regard to any seasonal enrollment restrictions;
  • (ii) if such a parent is enrolled but fails to make application to obtain coverage of such dependent child, immediately enroll such dependent child under such health benefit coverage upon application by such child’s other parent or by the office of temporary and disability assistance or social services district furnishing medical assistance to such child, and
  • (iii) not disenroll, or eliminate coverage of, such a child unless:
    • (A) the employer or organization is provided with satisfactory written evidence that such court order is no longer in effect, or the child is or will be enrolled in comparable health coverage through another insurer which will take effect not later than the effective date of such disenrollment, or
    • (B) such employer or organization has eliminated health insurance coverage for all similarly situated employees.
    • (C) Deleted.

(c) Execution for support enforcement; form. 

(1) THE INCOME EXECUTION shall be on the form for income withholding promulgated by the office of temporary and disability assistance for this purpose and shall include the necessary information and directions to ensure its characterization as an income withholding notice as described and required by subsection (b) of section six hundred sixty-six of title forty-two of the United States Code ;  provided, however, that where the court enters an order for spousal support only for which income withholding will be ordered by the sheriff, the clerk of court or the attorney for the creditor, an alternate spousal support form for income withholding promulgated by the office of temporary and disability assistance may be used but is not required.  In addition, the income execution shall specify the court in which it was entered, the amount of the periodic payments directed, and the names of the debtor and creditor.  In addition, to the extent not already provided on the form for income withholding, a separate document shall be served with the income execution which shall include:

  • (i) the name and address of the employer or income payor from whom the debtor is receiving or will receive income;
  • (ii) the amount of the deductions to be made therefrom on account of current support, and the amount to be applied to the reduction of arrears;
  • (iii) a notice that deductions will apply to current and subsequent income;
  • (iv) a notice that the income execution will be served upon any current or subsequent employer or income payor unless a mistake of fact is shown within fifteen days, a notice of the manner in which a mistake of fact may be asserted, and a notice that, if the debtor claims a mistake of fact, a determination will be made within forty-five days after notice to the debtor as provided in subdivision (d) of this section, and that the debtor will receive written notice whether the income execution will be served and of the time that deductions will begin;
  • (v) a notice that the employer or income payor must commence deductions no later than the first pay period that occurs after fourteen days following the service of the income execution and that payment must be remitted within seven business days of the date that the debtor paid;
  • (vi) a notice that the income execution is binding until further notice;
  • (vii) a notice of the substance of the provisions of section fifty-two hundred fifty-two of this article and that a violation thereof is punishable as a contempt of court by fine or imprisonment or both;
  • (viii) a notice of the limitations upon deductions from wages set forth in subdivision (g) of this section;
  • (ix) a notice that an employer must notify the issuer promptly when the debtor terminates employment and provide the debtor’s last address and the name and address of the new employer, if known;
  • (x) a notice that when an employer receives an income withholding instrument issued by another state, the employer shall apply the income withholding law of the state of the debtor’s principal place of employment in determining:
    • (A) the employer’s fee for processing income withholding;
    • (B) the maximum amount permitted to be withheld from the debtor’s income;
    • (C) the time periods within which the employer must implement the income withholding and forward the child support payment;
    • (D) the priorities for withholding and allocating income withheld for multiple child support creditors;  and
    • (E) any withholding terms or conditions not specified in the withholding instrument;
  • (xi) a notice that an employer who complies with an income execution that is regular on its face shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice;  and
  • (xii) the amount of arrears.

(2) THE MEDICAL SUPPORT EXECUTION shall contain the caption of the order of support and specify the date that the order of support was entered and the court in which it was entered.  Such execution shall include the name and address of the employer or organization and shall include:

  • (i) a notice that the debtor has been ordered by the court to enroll the dependents in any available health insurance benefits and to maintain such coverage for such dependents as long as such benefits remain available;
  • (ii) a notice inquiring of the employer or organization as to whether such health insurance benefits are presently in effect for the eligible dependents named in the execution, the date such benefits were or become available, or that such benefits are not available and the reasons therefor and directing that the response to such inquiry immediately be forwarded to the issuer of such execution;
  • (iii) a statement directing the employer or organization to purchase on behalf of the debtor any available health insurance benefits to be made available to the debtor’s dependents as directed by the execution, including the enrollment of such eligible dependents in such benefit plans and the provision to the dependents or such dependents’ custodial parent or legal guardian or social services district on behalf of persons applying for or in receipt of public assistance of any identification cards and benefit claim forms;
  • (iv) a statement directing the employer or organization to deduct from the debtor’s income such amount which is the debtor’s share of the premium, if any, for such health insurance benefits for such dependents who are otherwise eligible for such coverage without regard to any seasonal enrollment restrictions;
  • (v) a notice that the debtor’s employer must notify the issuer promptly at any time the debtor terminates or changes such health insurance benefits;
  • (vi) a statement that the debtor’s employer or organization shall not be required to purchase or otherwise acquire health insurance or health insurance benefits for such dependents that would not otherwise be available to the debtor by reason of his employment or membership;
  • (vii) a statement that failure to enroll the eligible dependents in such health insurance plan or benefits or failure to deduct from the debtor’s income the debtor’s share of the premium for such plan or benefits shall make such employer or organization jointly and severally liable for all medical expenses incurred on the behalf of the debtor’s dependents named in the execution while such dependents are not so enrolled to the extent of the health insurance benefits that should have been provided under the execution;
  • (viii) the name and last known mailing address of the debtor and the name and mailing address of the dependents;  provided however, that the name and mailing address of a social services official may be substituted on behalf of such dependents;
  • (ix) a reasonable description of the type of coverage to be provided to each dependent, or the manner in which such type of coverage is to be determined;
  • (x) the period to which such execution applies;  and
  • (xi) a statement that the debtor’s employer or organization shall not be required to provide any type or form of benefit or option not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support described in section one thousand three hundred ninety-six-g-1 of title forty-two of the United States Code .

(d) Notice to debtor.  The issuer shall serve a copy of the execution upon the debtor by regular mail to the debtor at his last known residence or such other place where he is likely to receive notice, or in the same manner as a summons may be served.

(e) Determination of mistake of fact.  Where the execution has been issued by the support collection unit, the debtor may assert a mistake of fact and shall have an opportunity to make a submission in support of the objection within fifteen days from service of a copy thereof.  Thereafter, the agency shall determine the merits of the objection, and shall notify the debtor of its determination within forty-five days after notice to the debtor as provided in subdivision (d) of this section.  If the objection is disallowed, the debtor shall be notified that the income execution will be served on the employer or income payor, and of the time that deductions will begin.  Where the income execution has been issued by an attorney as officer of the court, or by the sheriff, or by the clerk of the court, the debtor may assert a mistake of fact within fifteen days from service of a copy thereof by application to the supreme court or to the family court having jurisdiction in accordance with section four hundred sixty-one of the family court act .  If application is made to the family court, such application shall be by petition on notice to the creditor and it shall be heard and determined in accordance with the provisions of section four hundred thirty-nine of the family court act , and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application.  If application is made to the supreme court such application shall be by order to show cause or motion on notice to the creditor in the action in which the order or judgement sought to be enforced was entered and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application.

(f) Levy.  If a debtor fails to show mistake of fact within fifteen days, or after a determination pursuant to subdivision (e) of this section has been made, or if the issuer is unable to serve the execution upon the debtor, the creditor may levy upon the income that the debtor is receiving or will receive by serving the execution upon the employer or income payor personally in the same manner as a summons or by regular mail, except that such service shall not be made by delivery to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318 .

(g) Deduction from income. 

  1. An employer or income payor served with an income execution shall commence deductions from income due or thereafter due to the debtor no later than the first pay period that occurs fourteen days after service of the execution, and shall remit payments within seven business days of the date that the debtor is paid.  Each payment remitted by an employer or income payor shall include the information as instructed on the income execution and shall be payable to and remitted to the state disbursement unit established in this state in accordance with section six hundred fifty-four-b of title forty-two of the United States Code unless the income execution is for spousal support only, in which case the payments shall be payable to and remitted to the creditor.  If the money due to the debtor consists of salary or wages and his or her employment is terminated by resignation or dismissal at any time after service of the execution, the levy shall thereafter be ineffective, and the execution shall be returned, unless the debtor is reinstated or re-employed within ninety days after such termination.  An employer must notify the issuer promptly when the debtor terminates employment and provide the debtor’s last address and name and address of the new employer, if known.  An income payor must notify the issuer promptly when the debtor no longer receives income and must provide the debtor’s last address and the name and address of the debtor’s new employer, if known.  Where the income is compensation paid or payable to the debtor for personal services, the amount of the deductions to be withheld shall not exceed the following:

(i) Where a debtor is currently supporting a spouse or dependent child other than the creditor, the amount of the deductions to be withheld shall not exceed fifty percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required by law to be withheld (“disposable earnings”), except that if any part of such deduction is to be applied to the reduction of arrears which shall have accrued more than twelve weeks prior to the beginning of the week for which such earnings are payable, the amount of such deduction shall not exceed fifty-five percent of disposable earnings.

(ii) Where a debtor is not currently supporting a spouse or dependent child other than the creditor, the amount of the deductions to be withheld shall not exceed sixty percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required by law to be withheld (“disposable earnings”), except that if any part of such deduction is to be applied to the reduction of arrears which shall have accrued more than twelve weeks prior to the beginning of the week for which such earnings are payable, the amount of such deduction shall not exceed sixty-five percent of disposable earnings.

2.

    • (A) An employer or income payor served with an income execution in accordance with paragraph one of this subdivision shall be liable to the creditor for failure to deduct the amounts specified.  The creditor may commence a proceeding against the employer or income payor for accrued deductions, together with interest and reasonable attorney’s fees.
    • (B) An employer or income payor served with an income execution in accordance with paragraph one of this subdivision shall be liable to the creditor and the debtor for failure to remit any amounts which have been deducted as directed by the income execution.  Either party may commence a proceeding against the employer or income payor for accrued deductions, together with interest and reasonable attorney’s fees.
    • (C) The actions of the employer or income payor in deducting or failing to deduct amounts specified by an income execution shall not relieve the debtor of the underlying obligation of support.
    • (D) In addition to the remedies herein provided and as may be otherwise authorized by law, upon a finding by the family court that the employer or income payor failed to deduct or remit deductions as directed in the income execution, the court shall issue to the employer or income payor an order directing compliance and may direct the payment of a civil penalty not to exceed five hundred dollars for the first instance and one thousand dollars per instance for the second and subsequent instances of employer or income payor noncompliance.  The penalty shall be paid to the creditor and may be enforced in the same manner as a civil judgment or in any other manner permitted by law.

3. If an employer, organization or group health plan administrator is served with an execution for medical support enforcement, such employer, organization or group health plan administrator shall:  (i) purchase on behalf of the debtor any health insurance benefits which may be made available to the debtor’s dependents as ordered by the execution, including the immediate enrollment of such eligible dependents in such benefit plans;  (ii) provide the dependents for whom such benefits are required, or a social services official substituted for such dependents, identification cards and benefit claim forms;  (iii) commence deductions from income due or thereafter due to the debtor of such amount which is the debtor’s share of the premium, if any, for such health insurance benefits, provided, however, that such deduction when combined with deductions for support does not exceed the limitations set forth in paragraph one of this subdivision and is consistent with the priority provisions set forth in subdivision (h) of this section;  and (iv) provide a confirmation of such enrollment indicating the date such benefits were or become available or that such benefits are not available and the reasons therefor to the issuer of the execution.  Except as otherwise provided by law, nothing herein shall be deemed to obligate an employer or organization to maintain or continue an employee’s or member’s health insurance benefits.

4.  If such employer, organization or group health plan administrator shall fail to so enroll such eligible dependents or to deduct from the debtor’s income the debtor’s share of the premium, such employer, organization or group health plan administrator shall be jointly and severally liable for all medical expenses incurred on behalf of the debtor’s dependents named in the execution while such dependents are not so enrolled to the extent of the insurance benefits that should have been provided under such execution.  Except as otherwise provided by law, nothing herein shall be deemed to obligate an employer, organization or group health plan administrator to maintain or continue an employee’s or member’s health insurance benefits.

(h) Priority.  A levy pursuant to this section or an income deduction order pursuant to section 5242 of this chapter shall take priority over any other assignment, levy or process.  If an employer or income payor is served with more than one execution pursuant to this section, or with an execution pursuant to this section and also an order pursuant to section 5242 of this chapter, and if the combined total amount of the deductions to be withheld exceeds the limits set forth in subdivision (g) of this section, the employer or income payor shall withhold the maximum amount permitted thereby and pay to each creditor that proportion thereof which such creditor’s claim bears to the combined total.  Any additional deduction authorized by subdivision (g) of this section to be applied to the reduction of arrears shall be applied to such arrears in proportion to the amount of arrears due to each creditor.  Deductions to satisfy current support obligations shall have priority over deductions for the debtor’s share of health insurance premiums which shall have priority over any additional deduction authorized by subdivision (g) of this section.

(i) Levy upon money payable by the state.  A levy upon money payable directly by a department of the state, or by an institution under its jurisdiction, shall be made by serving the income execution upon the head of the department, or upon a person designated by him, at the office of the department in Albany;  a levy upon money payable directly upon the state comptroller’s warrant, or directly by a state board, commission, body or agency which is not within any department of the state, shall be made by serving the execution upon the state department of audit and control at its office in Albany.  Service at the office of a department or any agency or institution of the state in Albany may be made by registered or certified mail, return receipt requested.

1 42 USCA § 1381 et seq.

NY CPLR § 5242. INCOME DEDUCTION ORDER FORM SUPPORT ENFORCEMENT

(a) Upon application of a creditor, for good cause shown, and upon such terms as justice may require, the court may correct any defect, irregularity, error or omission in an income execution for support enforcement issued pursuant to section 5241 of this article.

(b) Upon application of a creditor, for good cause shown, the court may enter an income deduction order for support enforcement.  In determining good cause, the court may take into consideration evidence of the degree of such debtor’s past financial responsibility, credit references, credit history, and any other matter the court considers relevant in determining the likelihood of payment in accordance with the order of support.  Proof of default establishes a prima facie case against the debtor, which can be overcome only by proof of the debtor’s inability to make the payments.  Unless the prima facie case is overcome, the court shall enter an income deduction order for support enforcement pursuant to this section.

(c) When the court enters an order of support on behalf of persons other than those in receipt of public assistance or in receipt of services pursuant to section one hundred eleven-g of the social services law , or registers pursuant to article five-B of the family court act an order of support which has been issued by a foreign jurisdiction and which is not to be enforced pursuant to title six-A of article three of the social services law, where the court determines that the debtor has income that could be subject to an income deduction order, the court shall issue an income deduction order to obtain payment of the order at the same time it issues or registers the order.  The court shall enter the income deduction order unless the court finds and sets forth in writing (i) the reasons that there is good cause not to require immediate income withholding;  or (ii) that an agreement providing for an alternative arrangement has been reached between the parties.  Such agreement may include a written agreement or an oral stipulation, made on the record, that results in a written order.  For purposes of this subdivision, good cause shall mean substantial harm to the debtor.  The absence of an arrearage or the mere issuance of an income deduction order shall not constitute good cause.  When the court determines that there is good cause not to issue an income deduction order immediately or when the parties agree to an alternative arrangement as provided in this subdivision, the court shall state expressly in the order of support the basis for its decision.

(d) In entering the income deduction order, the court shall use the form for income withholding promulgated by the office of temporary and disability assistance for this purpose, which form shall include the necessary information and directions to ensure the characterization of the income deduction order as an income withholding notice as described and required by subsection (b) of section six hundred sixty-six of title forty-two of the United States Code ;  provided, however, that where the court enters an order for spousal support only, an alternate spousal support form for income withholding promulgated by the office of temporary and disability assistance may be used but is not required.  The court shall serve or cause to be served a copy of the income deduction order on the employer or income payor and transmit copies of such order to the parties;  and, in addition, where the income deduction order is for child support or combined child and spousal support, to the state disbursement unit established in this state in accordance with section six hundred fifty-four-b of title forty-two of the United States Code .

(e) An employer or income payor served with an income deduction order entered pursuant to this section shall commence deductions from the income due or thereafter due to the debtor no later than the first pay period that occurs fourteen days after service of the income deduction order, and shall make payments payable to and remit such payments to the state disbursement unit if the deductions are for child or combined child and spousal support, or to the creditor if the deductions are for spousal support only, within seven business days of the date that the debtor is paid.  Each payment remitted by the employer or income payor shall include the information as instructed on the income deduction order.  The amount remitted by the employer or income payor shall be as set forth in the income deduction order including the additional amount that shall be ordered by the court and applied to the reduction of arrears, if any, unless such deduction is otherwise limited by subdivision (f) of this section.

(f) An employer or income payor shall be liable to the creditor for failure to deduct the amounts specified in the income deduction order, provided however that deduction by the employer or income payor of the amounts specified shall not relieve the debtor of the underlying obligation of support.  If an employer or income payor shall fail to so pay the state disbursement unit or, if a spousal support only payment the creditor, the creditor may commence a proceeding against the employer or income payor for accrued deductions, together with interest and reasonable attorney’s fees.  If the debtor’s employment is terminated by resignation or dismissal at any time after service of the income deduction order, the order shall cease to have force and effect unless the debtor is reinstated or re-employed within ninety days after such termination.  An employer must notify the issuer promptly when the debtor terminates employment and must provide the debtor’s last address and the name and address of the debtor’s new employer, if known.  An income payor must notify the issuer when the debtor no longer receives income and must provide the debtor’s last address and the name and address of the debtor’s new employer, if known.  Where the income is compensation paid or payable to the debtor for personal services, the amount withheld by the employer shall not exceed the following:

(i) Where the debtor currently is supporting a spouse or dependent child other than the creditor’s dependent child, the amount withheld shall not exceed fifty percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required by law to be withheld (“disposable earnings”), except that if any part of the deduction is to be applied to the reduction of arrears which shall have accrued more than twelve weeks prior to the beginning of the week for which such earnings are payable, the amount withheld shall not exceed fifty-five percent of disposable earnings.

(ii) Where the debtor currently is not supporting a spouse or dependent child other than the creditor’s dependent child, the amount withheld shall not exceed sixty percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required by law to be withheld (“disposable earnings”), except that if any part of the deduction is to be applied to the reduction of arrears which shall have accrued more than twelve weeks prior to the beginning of the week for which such earnings are payable, the amount withheld shall not exceed sixty-five percent of disposable earnings.

(g) An order pursuant to this section shall take priority over any other assignment, levy or process.  If an employer or income payor is served with more than one income deduction order pertaining to a single employee pursuant to this section, or with an order issued pursuant to this section and also an execution pursuant to section 5241 of this article, and if the combined total amount of the income to be withheld exceeds the limits set forth in subdivision (f) of this section, the employer or income payor shall withhold the maximum amount permitted thereby and pay to each creditor that proportion thereof which such creditor’s claim bears to the combined total.

(h) An employer or income payor shall be liable to the creditor for failure to deduct the amounts specified, provided however that deduction of the amounts specified by the employer or income payor shall not relieve the debtor of the underlying obligation of support.

(i) A creditor shall not be required to issue process under section 5241 of this article prior to obtaining relief pursuant to this section.

NY CPLR § 5250. ARREST OF JUDGMENT DEBTOR

Upon motion of the judgment creditor without notice, where it is shown that the judgment debtor is about to depart from the state, or keeps himself concealed therein, and that there is reason to believe that he has in his possession of custody property in which he has an interest, the court may issue a warrant directed to the sheriff of any county in which the judgment debtor may be located.  The warrant shall command the sheriff to arrest the judgment debtor forthwith and bring him before the court.  The sheriff shall serve a copy of the warrant and the papers upon which it was based upon the judgment debtor at the time he makes the arrest.  When the judgment debtor is brought before the court, the court may order that he give an undertaking, in a sum to be fixed by the court, that he will attend before the court for examination and that he will obey the terms of any restraining notice contained in the order.

NY CPLR § 5251. DISOBEDIENCE OF SUBPOENA, RESTRAINING NOTICE OR ORDER, FALSE SWEARING; DESTROYING NOTICE OF SALE

Refusal or willful neglect of any person to obey a subpoena or restraining notice issued, or order granted, pursuant to this title;  false swearing upon an examination or in answering written questions;  and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court.

NY CPLR § 5252. DISCRIMINATION AGAINST EMPLOYEES AND PROSPECTIVE EMPLOYEES BASED UPON WAGE ASSIGNMENT OR INCOME EXECUTION

  1. No employer shall discharge, lay off, refuse to promote, or discipline an employee, or refuse to hire a prospective employee, because one or more wage assignments or income executions have been served upon such employer or a former employer against the employee’s or prospective employee’s wages or because of the pendency of any action or judgment against such employee or prospective employee for nonpayment of any alleged contractual obligation.  In addition to being subject to the civil action authorized in subdivision two of this section, where any employer discharges, lays off, refuses to promote or disciplines an employee or refuses to hire a prospective employee because of the existence of one or more income executions and/or income deduction orders issued pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of this article, the court may direct the payment of a civil penalty not to exceed five hundred dollars for the first instance and one thousand dollars per instance for the second and subsequent instances of employer or income payor discrimination.  The penalty shall be paid to the creditor and may be enforced in the same manner as a civil judgment or in any other manner permitted by law.
  2. An employee or prospective employee may institute a civil action for damages for wages lost as a result of a violation of this section within ninety days after such violation.  Damages recoverable shall not exceed lost wages for six weeks and in such action the court also may order the reinstatement of such discharged employee or the hiring of such prospective employee. Except as provided for in subdivision (g) of section fifty-two hundred forty-one , not more than ten per centum of the damages recovered in such action shall be subject to any claims, attachments or executions by any creditors, judgment creditors or assignees of such employee or prospective employee. A violation of this section may also be punished as a contempt of court pursuant to the provisions of section seven hundred fifty-three of the judiciary law .

NY CPLR § 5253. COST OF LIVING ADJUSTMENT FOR PERSONAL AND REAL PROPERTY EXEMPT FROM APPLICATION TO THE SATISFACTION OF MONEY JUDGMENTS AND EXEMPTIONS IN BANKRUPTCY

(a) Beginning on April first, two thousand twelve, and at each three-year interval ending on April first thereafter, the dollar amount of the exemption provided in sections fifty-two hundred five and fifty-two hundred six of this article and sections two hundred eighty-two and two hundred eighty-three of the debtor and creditor law shall be adjusted as provided in subdivision (b) of this section.

(b) The superintendent of financial services shall determine the amount of the adjustment based on the change in the consumer price index for all urban consumers, New York-Northern New Jersey-Long Island, NY-NJ-CT-PA, published by the U.S. department of labor, bureau of labor statistics, for the most recent three-year period ending on December thirty-first preceding the adjustment, with each adjusted amount rounded to the nearest twenty-five dollars.

(c) Beginning on April first, two thousand twelve, and at each three-year interval ending on April first thereafter, the superintendent of financial services shall publish the current dollar amount of the applicable exemption provided in this article, together with the date of the next scheduled adjustment.  The publication shall be substantially in the form set forth below:

“Current dollar amount of exemption from application to the satisfaction of money judgments under New York civil practice law and rules sections 5205 and 5206 and exemptions in bankruptcy under debtor and creditor law sections 282 and 283 :

The following is the current dollar amount of exemptions from the satisfaction of money judgments under civil practice law and rules sections 5205 and 5206 and under debtor and creditor law sections 282 and 283 :

(amount)

This amount is effective on April 1, (year) and shall not apply to cases commenced before April 1, (year).  The next adjustment is scheduled for April 1, (year).  Such adjustments shall not apply with respect to restraining notices served or executions effected before the date of the adjustment.  Nothing in this section limits the judgment debtor’s exemption rights in this section or under any other law.”

Updated: December 1, 2019.

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