§ 5232 — Levy upon personal property

New York § 5232

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 52: Enforcement of Money Judgments

Text

§ 5232. Levy upon personal property. (a) Levy by service of execution.\nThe sheriff or support collection unit designated by the appropriate\nsocial services district shall levy upon any interest of the judgment\ndebtor or obligor in personal property not capable of delivery, or upon\nany debt owed to the judgment debtor or obligor, by serving a copy of\nthe execution upon the garnishee, in the same manner as a summons,\nexcept that such service shall not be made by delivery to a person\nauthorized to receive service of summons solely by a designation filed\npursuant to a provision of law other than rule 318. In the event the\ngarnishee is the state of New York, such levy shall be made in the same\nmanner as an income execution pursuant to section 5231 of this article.\nA levy by service of the execution is effective only if, at the time of\nservice, the person served owes a debt to the judgment debtor or obligor\nor he or she is in the possession or custody of property not capable of\ndelivery in which he or she knows or has reason to believe the judgment\ndebtor or obligor has an interest, or if the judgment creditor or\nsupport collection unit has stated in a notice which shall be served\nwith the execution that a specified debt is owed by the person served to\nthe judgment debtor or obligor or that the judgment debtor or obligor\nhas an interest in specified property not capable of delivery in the\npossession or custody of the person served. All property not capable of\ndelivery in which the judgment debtor or obligor is known or believed to\nhave an interest then in or thereafter coming into the possession or\ncustody of such a person, including any specified in the notice, and all\ndebts of such a person, including any specified in the notice, then due\nor thereafter coming due to the judgment debtor or obligor, shall be\nsubject to the levy. The person served with the execution shall\nforthwith transfer all such property, and pay all such debts upon\nmaturity, to the sheriff or to the support collection unit and execute\nany document necessary to effect the transfer or payment. After such\ntransfer or payment, property coming into the possession or custody of\nthe garnishee, or debt incurred by him, or her shall not be subject to\nthe levy. Until such transfer or payment is made, or until the\nexpiration of ninety days after the service of the execution upon him or\nher, or of such further time as is provided by any order of the court\nserved upon him or her, whichever event first occurs, the garnishee is\nforbidden to make or suffer any sale, assignment or transfer of, or any\ninterference with, any such property, or pay over or otherwise dispose\nof any such debt, to any person other than the sheriff or the support\ncollection unit, except upon direction of the sheriff or the support\ncollection unit or pursuant to an order of the court. At the expiration\nof ninety days after a levy is made by service of the execution, or of\nsuch further time as the court, upon motion of the judgment creditor or\nsupport collection unit has provided, the levy shall be void except as\nto property or debts which have been transferred or paid to the sheriff\nor to the support collection unit or as to which a proceeding under\nsections 5225 or 5227 has been brought. A judgment creditor who, or\nsupport collection unit which, has specified personal property or debt\nto be levied upon in a notice served with an execution shall be liable\nto the owner of the property or the person to whom the debt is owed, if\nother than the judgment debtor or obligor, for any damages sustained by\nreason of the levy.\n (b) Levy by seizure. The sheriff or support collection unit of the\nappropriate social services district shall levy upon any interest of the\njudgment debtor in personal property capable of delivery by taking the\nproperty into custody without interfering with the lawful possession of\npledgees and lessees. The sheriff or support collection unit shall\nforthwith serve a copy of the execution in the manner prescribed by\nsubdivision (a) upon the person from whose possession or custody the\nproperty was taken.\n (c) Notice to judgment debtor or obligor. Where an execution does not\nstate that a notice in the form presented by subdivision (e) of section\nfifty-two hundred twenty-two of this chapter has been duly served upon\nthe judgment debtor or obligor within a year, the sheriff or support\ncollection unit shall, not later than four days after service of the\nexecution upon any garnishee, mail by first class mail, or personally\ndeliver, to each judgment debtor or obligor who is a natural person, a\ncopy of the execution together with such notice. The sheriff or support\ncollection unit shall specify on the notice to judgment debtor or\nobligor the name and address of the judgment creditor or the judgment\ncreditor's attorney or the support collection unit. The notice shall be\nmailed to the judgment debtor or obligor at his or her residence\naddress; and in the event such mailing is returned as undeliverable by\nthe post office, or if the residence address of the judgment debtor or\nobligor is unknown, then to the judgment debtor or obligor in care of\nthe place of employment of the judgment debtor or obligor if known, in\nan envelope bearing the legend "personal and confidential" and not\nindicating on the outside thereof, by the return address or otherwise,\nthat the communication is from a sheriff or support collection unit or\nconcerns a debt; or if neither the residence nor the place of employment\nof the judgment debtor or obligor is known, then to the judgment debtor\nor obligor at any other known address.\n (d) For the purposes of this section "obligor" shall mean an\nindividual other than a judgment debtor obligated to pay support,\nalimony or maintenance pursuant to an order of a court of competent\njurisdiction who has been found to be in "default" of such order as such\nterm is defined in paragraph seven of subdivision (a) of section\nfifty-two hundred forty-one of this article and the establishment of\nsuch default has been subject to the procedures established for the\ndetermination of a "mistake of fact" for income executions pursuant to\nsubdivision (e) of section fifty-two hundred forty-one of this article,\nexcept that for the purposes of this section only, a default shall not\nbe founded upon retroactive child support obligations as defined in\nparagraph (c) of subdivision one of section four hundred forty and\nsubdivision one of section two hundred forty, and paragraph b of\nsubdivision nine of section two hundred thirty-six of the domestic\nrelations law.\n (e) Notwithstanding the provisions of subdivision (a) of this section,\nif direct deposit or electronic payments reasonably identifiable as\nstatutorily exempt payments as defined in paragraph two of subdivision\n(l) of section fifty-two hundred five of this article were made to the\njudgment debtor's account during the forty-five day period preceding the\ndate that the execution notice was served on the garnishee banking\ninstitution, then a garnishee banking institution shall not execute,\nlevy, attach, garnish or otherwise restrain or encumber two thousand\nfive hundred dollars in the judgment debtor's account. Notwithstanding\nthe provisions of subdivision (a) of this section, an execution shall\nnot apply to an amount equal to or less than the greater of two hundred\nforty times the federal minimum hourly wage prescribed in the Fair Labor\nStandards Act of 1938 or two hundred forty times the state minimum\nhourly wage prescribed in section six hundred fifty-two of the labor law\nas in effect at the time the earnings are payable (as published on the\nwebsites of the United States department of labor and the state\ndepartment of labor) except such part thereof as a court determines to\nbe unnecessary for the reasonable requirements of the judgment debtor\nand his or her dependents. This amount shall be equal to seventeen\nhundred sixteen dollars on the effective date of this subdivision, and\nshall rise to seventeen hundred forty dollars on July twenty-fourth, two\nthousand nine, and shall rise thereafter in tandem with the minimum\nwage. Nothing in this subsection shall be construed to limit a banking\ninstitution's right or obligation to restrain, remove or execute upon\nsuch funds from the judgment debtor's account if required by 42 U.S.C. §\n659 or 38 U.S.C. § 5301 or to enforce a child support, spousal support,\nalimony or maintenance obligation or by a court order. Nothing in this\nsubdivision shall alter the exempt status of funds that are protected\nfrom execution, levy, attachment, garnishment, or other legal process,\nunder section fifty-two hundred five of this article or under any other\nprovision of state or federal law, or affect the right of a judgment\ndebtor to claim such exemption.\n (f) Fee for banking institution's costs in processing a levy by\nservice of execution when account contains only exempt, direct deposit\nor electronic payments. In the event that a banking institution cannot\nlawfully garnish or execute upon on a judgment debtor's banking\ninstitution account or funds are garnished or executed upon in violation\nof any section of this chapter, the banking institution shall charge no\nfee to the judgment debtor regardless of any terms of agreement, or\nschedule of fees, or other contract between the judgment debtor and the\nbanking institution.\n (g) Where a levy by execution pursuant to this section is made against\na natural person's account at a banking institution, the sheriff or\nsupport collection unit shall serve the banking institution with the\nexemption notice and two exemption claim forms prescribed in subdivision\n(b) of section fifty-two hundred twenty-two-a of this article. The\nnotice and forms must be served upon the banking institution\nsimultaneously with the execution and section fifty-two hundred\ntwenty-two-a of this article shall apply, and all procedures stated\ntherein must be followed. The banking institution shall not transfer the\nfunds in the account to the sheriff or support collection unit for at\nleast twenty-seven days. If, after thirty days, the banking institution\nhas not received an exemption claim form from the judgment debtor, or a\ncourt order directing otherwise, it may thereafter transfer the funds to\nthe sheriff or support collection unit.\n (h) The provisions of subdivisions (e), (f) and (g) of this section do\nnot apply when the state of New York, or any of its agencies or\nmunicipal corporations is the judgment creditor, or if the debt enforced\nis for child support, spousal support, maintenance or alimony provided\nthat in those instances the execution contains a legend at the top\nthereof, above the caption, in sixteen point bold type with the\nfollowing language: "The judgment creditor is the state of New York, or\nany of its agencies or municipal corporations, AND/OR the debt enforced\nis for child support, spousal support, maintenance or alimony."\n