N.Y. CVP. LAW § 5231 : NY Code - Section 5231: Income execution

Search N.Y. CVP. LAW § 5231 : NY Code - Section 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  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
  shall commence payment of the  installments  specified  to  the  sheriff
  forthwith  and that, upon his default, the execution will be served upon
  the person from whom he 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 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. 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. If a judgment debtor
  fails to pay installments pursuant to an income  execution  served  upon
  him 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 from whom
  the judgment debtor is receiving or will receive money personally within
  the  county  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:
                                          AMOUNT TO PAY OR DEDUCT FROM
                                            EARNINGS UNDER THIS INCOME
  IF DISPOSABLE EARNINGS IS:                EXECUTION IS:
 
  (a)  30 TIMES FEDERAL MINIMUM           NO PAYMENT OR DEDUCTION ALLOWED
       WAGE (      ) OR LESS
 
  (b)  MORE THAN 30 TIMES FEDERAL         THE LESSER OF: THE EXCESS OVER
       MINIMUM WAGE (      ) AND            30 TIMES THE FEDERAL MINIMUM
       LESS THAN 40 TIMES FEDERAL           WAGE (      ) IN DISPOSABLE
       MINIMUM WAGE (      )                EARNINGS, or 10% OF GROSS
                                            EARNINGS
 
  (c)  40 TIMES THE FEDERAL               THE LESSER OF: 25% OF DISPOSABLE
       MINIMUM WAGE (      ) OR MORE        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 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,
  where the judgment debtor is a non-resident, the county, town or city in
  which  he  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 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 may
  be found. 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.