§ 5222 — Restraining notice

§ 5222. Restraining notice. (a) Issuance; on whom served; form;\nservice. A restraining notice may be issued by the clerk of the court or\nthe attorney for the judgment creditor as officer of the court, or by\nthe support collection unit designated by the appropriate social\nservices district. It may be served upon any person, except the employer\nof a judgment debtor or obligor where the property sought to be\nrestrained consists of wages or salary due or to become due to the\njudgment debtor or obligor. It shall be served personally in the same\nmanner as a summons or by registered or certified mail, return receipt\nrequested or if issued by the support collection unit, by regular mail,\nor by electronic means as set forth in subdivision (g) of this section.\nIt shall specify all of the parties to the action, the date that the\njudgment or order was entered, the court in which it was entered, the\namount of the judgment or order and the amount then due thereon, the\nnames of all parties in whose favor and against whom the judgment or\norder was entered, it shall set forth subdivision (b) and shall state\nthat disobedience is punishable as a contempt of court, and it shall\ncontain an original signature or copy of the original signature of the\nclerk of the court or attorney or the name of the support collection\nunit which issued it. If the applicable interest rate changes pursuant\nto section five thousand four of this chapter while a restraint is in\neffect, the judgment creditor shall issue an amended restraining notice,\nand include the date as of which the new interest rate applies, without\nleave of court as required under subdivision (c) of this section.\nService of a restraining notice upon a department or agency of the state\nor upon an institution under its direction shall be made by serving a\ncopy upon the head of the department, or the person designated by him or\nher and upon the state department of audit and control at its office in\nAlbany; a restraining notice served upon a state board, commission, body\nor agency which is not within any department of the state shall be made\nby serving the restraining notice upon the state department of audit and\ncontrol at its office in Albany. Service at the office of a department\nof the state in Albany may be made by the sheriff of any county by\nregistered or certified mail, return receipt requested, or if issued by\nthe support collection unit, by regular mail.\n (b) Effect of restraint; prohibition of transfer; duration. A judgment\ndebtor or obligor served with a restraining notice is forbidden to make\nor suffer any sale, assignment, transfer or interference with any\nproperty in which he or she has an interest, except as set forth in\nsubdivisions (h) and (i) of this section, and except upon direction of\nthe sheriff or pursuant to an order of the court, until the judgment or\norder is satisfied or vacated. A restraining notice served upon a person\nother than the judgment debtor or obligor is effective only if, at the\ntime of service, he or she owes a debt to the judgment debtor or obligor\nor he or she is in the possession or custody of property in which he or\nshe knows or has reason to believe the judgment debtor or obligor has an\ninterest, or if the judgment creditor or support collection unit has\nstated in the notice that a specified debt is owed by the person served\nto the judgment debtor or obligor or that the judgment debtor or obligor\nhas an interest in specified property in the possession or custody of\nthe person served. All property in which the judgment debtor or obligor\nis known or believed to have an interest then in and thereafter coming\ninto the possession or custody of such a person, including any specified\nin the notice, and all debts of such a person, including any specified\nin the notice, then due and thereafter coming due to the judgment debtor\nor obligor, shall be subject to the notice except as set forth in\nsubdivisions (h) and (i) of this section. Such a person is forbidden to\nmake or suffer any sale, assignment or transfer of, or any interference\nwith, any such property, or pay over or otherwise dispose of any such\ndebt, to any person other than the sheriff or the support collection\nunit, except as set forth in subdivisions (h) and (i) of this section,\nand except upon direction of the sheriff or pursuant to an order of the\ncourt, until the expiration of one year after the notice is served upon\nhim or her, or until the judgment or order is satisfied or vacated,\nwhichever event first occurs. A judgment creditor or support collection\nunit which has specified personal property or debt in a restraining\nnotice shall be liable to the owner of the property or the person to\nwhom the debt is owed, if other than the judgment debtor or obligor, for\nany damages sustained by reason of the restraint. If a garnishee served\nwith a restraining notice withholds the payment of money belonging or\nowed to the judgment debtor or obligor in an amount equal to twice the\namount due on the judgment or order, the restraining notice is not\neffective as to other property or money.\n (c) Subsequent notice. Leave of court is required to serve more than\none restraining notice upon the same person with respect to the same\njudgment or order. A judgment creditor shall not serve more than two\nrestraining notices per year upon a natural person's banking institution\naccount. If the applicable interest rate changes pursuant to section\nfive thousand four of this chapter while a restraint is in effect, the\njudgment creditor shall issue an amended restraining notice without\nleave of court.\n (d) Notice to judgment debtor or obligor. Except where the provisions\nof section fifty-two hundred twenty-two-a of this article are\napplicable, pursuant to subdivision (a) of such section, if a notice in\nthe form prescribed in subdivision (e) of this section has not been\ngiven to the judgment debtor or obligor within a year before service of\na restraining notice, a copy of the restraining notice together with the\nnotice to judgment debtor or obligor shall be mailed by first class mail\nor personally delivered to each judgment debtor or obligor who is a\nnatural person within four days of the service of the restraining\nnotice. Such notice shall be mailed to the defendant at his or her\nresidence address; or in the event such mailing is returned as\nundeliverable by the post office, or if the residence address of the\ndefendant is unknown, then to the defendant in care of the place of\nemployment of the defendant if known, in an envelope bearing the legend\n"personal and confidential" and not indicating on the outside thereof,\nby the return address or otherwise, that the communication is from an\nattorney or concerns a judgment or order; or if neither the residence\naddress nor the place of employment of the defendant is known then to\nthe defendant at any other known address.\n (e) Content of notice. The notice required by subdivision (d) of this\nsection shall be in substantially the following form and may be included\nin the restraining notice:\n NOTICE TO JUDGMENT DEBTOR OR OBLIGOR\n Money or property belonging to you may have been taken or held in\norder to satisfy a judgment or order which has been entered against you.\nRead this carefully.\n YOU MAY BE ABLE TO GET YOUR MONEY BACK\n State and federal laws prevent certain money or property from being\ntaken to satisfy judgments or orders. Such money or property is said to\nbe "exempt". The following is a partial list of money which may be\nexempt:\n 1. Supplemental security income, (SSI);\n 2. Social security;\n 3. Public assistance (welfare);\n 4. Spousal support, maintenance (alimony) or child support;\n 5. Unemployment benefits;\n 6. Disability benefits;\n 7. Workers' compensation benefits;\n 8. Public or private pensions;\n 9. Veterans benefits;\n 10. Ninety percent of your wages or salary earned in the last sixty\ndays;\n 11. Twenty-five hundred dollars of any bank account containing\nstatutorily exempt payments that were deposited electronically or by\ndirect deposit within the last forty-five days, including, but not\nlimited to, your social security, supplemental security income, veterans\nbenefits, public assistance, workers' compensation, unemployment\ninsurance, public or private pensions, railroad retirement benefits,\nblack lung benefits, or child support payments;\n 12. Railroad retirement;\n 13. Black lung benefits; and\n 14. COVID-19 stimulus relief for individuals and families with\nchildren.\n If you think that any of your money that has been taken or held is\nexempt, you must act promptly because the money may be applied to the\njudgment or order. If you claim that any of your money that has been\ntaken or held is exempt, you may contact the person sending this notice.\n Also, YOU MAY CONSULT AN ATTORNEY, INCLUDING ANY FREE LEGAL SERVICES\nORGANIZATION IF YOU QUALIFY. You can also go to court without an\nattorney to get your money back. Bring this notice with you when you go.\nYou are allowed to try to prove to a judge that your money is exempt\nfrom collection under New York civil practice law and rules, sections\nfifty-two hundred twenty-two-a, fifty-two hundred thirty-nine and\nfifty-two hundred forty. If you do not have a lawyer, the clerk of the\ncourt may give you forms to help you prove your account contains exempt\nmoney that the creditor cannot collect. The law (New York civil practice\nlaw and rules, article four and sections fifty-two hundred thirty-nine\nand fifty-two hundred forty) provides a procedure for determination of a\nclaim to an exemption.\n (f) For the purposes of this section "order" shall mean an order\nissued by a court of competent jurisdiction directing the payment of\nsupport, alimony or maintenance upon which a "default" as defined in\nparagraph seven of subdivision (a) of section fifty-two hundred\nforty-one of this article has been established subject to the procedures\nestablished for the determination of a "mistake of fact" for income\nexecutions pursuant to subdivision (e) of section fifty-two hundred\nforty-one of this article except that for the purposes of this section\nonly a default shall not be founded upon retroactive child support\nobligations as defined in paragraph (a) of subdivision one of section\nfour hundred forty of the family court act and subdivision one of\nsection two hundred forty and paragraph b of subdivision nine of section\ntwo hundred thirty-six of the domestic relations law.\n (g) Restraining notice in the form of magnetic tape or other\nelectronic means. Where such person consents thereto in writing, a\nrestraining notice in the form of magnetic tape or other electronic\nmeans, as defined in subdivision (f) of rule twenty-one hundred three of\nthis chapter, may be served upon a person other than the judgment debtor\nor obligor. A restraining notice in such form shall contain all of the\ninformation required to be specified in a restraining notice under\nsubdivision (a), except for the original signature or copy of the\noriginal signature of the clerk or attorney who issued the restraining\nnotice. The provisions of this subdivision notwithstanding, the notice\nrequired by subdivisions (d) and (e) shall be given to the judgment\ndebtor or obligor in the written form set forth therein.\n (h) Effect of restraint on judgment debtor's banking institution\naccount into which statutorily exempt payments are made electronically\nor by direct deposit. Notwithstanding the provisions of subdivision (b)\nof this section, if direct deposit or electronic payments reasonably\nidentifiable as statutorily exempt payments as defined in paragraph two\nof subdivision (l) of section fifty-two hundred five of this article\nwere made to the judgment debtor's account during the forty-five day\nperiod preceding the date that the restraining notice was served on the\nbanking institution, then the banking institution shall not restrain two\nthousand five hundred dollars in the judgment debtor's account. If the\naccount contains an amount equal to or less than two thousand five\nhundred dollars, the account shall not be restrained and the restraining\nnotice shall be deemed void. Nothing in this subdivision shall be\nconstrued to limit a banking institution's right or obligation to\nrestrain or remove such funds from the judgment debtor's account if\nrequired by 42 U.S.C. § 659 or 38 U.S.C. § 5301 or by a court order.\nNothing in this subdivision shall alter the exempt status of funds that\nare protected from execution, levy, attachment, garnishment or other\nlegal process, under section fifty-two hundred five of this article or\nunder any other provision of state or federal law, or affect the right\nof a judgment debtor to claim such exemption.\n (i) Effect of restraint on judgment debtor's banking institution\naccount. A restraining notice issued pursuant to this section shall not\napply 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 subdivision shall be construed to limit a banking\ninstitution's right or obligation to restrain or remove such funds from\nthe judgment debtor's account if required by 42 U.S.C. § 659 or 38\nU.S.C. § 5301 or by a court order. Where a judgment debtor's account\ncontains an amount equal to or less than ninety percent of the greater\nof two hundred forty times the federal minimum hourly wage prescribed in\nthe Fair Labor Standards Act of 1938 or two hundred forty times the\nstate minimum hourly wage prescribed in section six hundred fifty-two of\nthe labor law as in effect at the time the earnings are payable (as\npublished on the websites of the United States department of labor and\nthe state department of labor), the account shall not be restrained and\nthe restraining notice shall be deemed void, except as to those funds\nthat a court determines to be unnecessary for the reasonable\nrequirements of the judgment debtor and his or her dependents. Nothing\nin this subdivision shall alter the exempt status of funds which are\nexempt from execution, levy, attachment or garnishment, under section\nfifty-two hundred five of this article or under any other provision of\nstate or federal law, or the right of a judgment debtor to claim such\nexemption.\n (j) Fee for banking institution's costs in processing a restraining\nnotice for an account. In the event that a banking institution served\nwith a restraining notice cannot lawfully restrain a judgment debtor's\nbanking institution account, or a restraint is placed on the judgment\ndebtor's account in violation of any section of this chapter, the\nbanking institution shall charge no fee to the judgment debtor\nregardless of any terms of agreement, or schedule of fees, or other\ncontract between the judgment debtor and the banking institution.\n (k) The provisions of subdivisions (h), (i) and (j) 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 the restraining notice contains a legend at the top thereof, above\nthe caption, in sixteen point bold type with the following language:\n"The judgment creditor is the state of New York, or any of its agencies\nor municipal corporations, AND/OR the debt enforced is for child\nsupport, spousal support, maintenance or alimony.".\n