§ 5231 — Income execution

New York § 5231

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

Text

§ 5231. Income execution. (a) Form. An income execution shall\nspecify, in addition to the requirements of subdivision (a) of section\n5230: (i) the name and address of the person or entity from whom the\njudgment debtor is receiving or will receive money; (ii) the amount of\nmoney, the frequency of its payment and the amount of the installments\nto be collected therefrom; and (iii) shall contain a notice to the\njudgment debtor that he or she shall commence payment of the\ninstallments specified to the sheriff forthwith and that, upon his or\nher default, the execution will be served upon the person or entity from\nwhom he or she is receiving or will receive money. Provided, however,\nthat if a judgment creditor issues an amended execution pursuant to\nsection five thousand two hundred thirty of this article because the\napplicable interest rate changes pursuant to section five thousand four\nof this chapter, the income execution need only specify paragraphs (i)\nand (ii) of this subdivision.\n (b) Issuance. Where a judgment debtor is receiving or will receive\nmoney from any source, an income execution for installments therefrom of\nnot more than ten percent thereof may be issued and delivered to the\nsheriff of the county in which the judgment debtor resides or, where the\njudgment debtor is a non-resident, the county in which he is employed;\nprovided, however, that (i) no amount shall be withheld from the\njudgment debtor's earnings pursuant to an income execution for any week\nunless the disposable earnings of the judgment debtor for that week\nexceed the greater of thirty times the federal minimum hourly wage\nprescribed in the Fair Labor Standards Act of 1938 or thirty 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; (ii)\nthe amount withheld from the judgment debtor's earnings pursuant to an\nincome execution for any week shall not exceed twenty-five percent of\nthe disposable earnings of the judgment debtor for that week, or, the\namount by which the disposable earnings of the judgment debtor for that\nweek exceed the greater of thirty times the federal minimum hourly wage\nprescribed by the Fair Labor Standards Act of 1938 or thirty 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,\nwhichever is less; (iii) if the earnings of the judgment debtor are also\nsubject to deductions for alimony, support or maintenance for family\nmembers or former spouses pursuant to section five thousand two hundred\nforty-one or section five thousand two hundred forty-two of this\narticle, the amount withheld from the judgment debtor's earnings\npursuant to this section shall not exceed the amount by which\ntwenty-five percent of the disposable earnings of the judgment debtor\nfor that week exceeds the amount deducted from the judgment debtor's\nearnings in accordance with section five thousand two hundred forty-one\nor section five thousand two hundred forty-two of this article; and (iv)\nno amount shall be imposed in judgments arising from a medical debt\naction brought by a hospital licensed under article twenty-eight of the\npublic health law or a health care professional authorized under title\neight of the education law. Nothing in this section shall be construed\nto modify, abrogate, impair, or affect any exemption from the\nsatisfaction of a money judgment otherwise granted by law.\n (c) Definition of earnings and disposable earnings. (i) As used herein\nearnings means compensation paid or payable for personal services,\nwhether denominated as wages, salary, commission, bonus, or otherwise,\nand includes periodic payments pursuant to a pension or retirement\nprogram.\n (ii) As used herein disposable earnings means that part of the\nearnings of any individual remaining after the deduction from those\nearnings of any amounts required by law to be withheld.\n (d) Service upon debtor; first service by sheriff. Within twenty days\nafter an income execution is delivered to the sheriff, the sheriff shall\nserve a copy of it upon the judgment debtor, in the same manner as a\nsummons or, in lieu thereof, by certified mail return receipt requested\nprovided an additional copy is sent by regular mail to the debtor. If\nservice is by mail as herein provided, the person effecting service\nshall retain the receipt together with a post office certificate of\nmailing as proof of such service. Provided, however, that if a judgment\ncreditor issues an amended execution pursuant to section five thousand\ntwo hundred thirty of this article because the applicable interest rate\nchanges pursuant to section five thousand four of this chapter, the\nsheriff shall serve a copy of the income execution within forty-five\ndays after an income execution is delivered to the sheriff.\n (e) Levy upon default or failure to serve debtor; second service by\nsheriff. If a judgment debtor fails to pay installments pursuant to an\nincome execution served upon him or her for a period of twenty days, or\nif the sheriff is unable to serve an income execution upon the judgment\ndebtor within twenty days after the execution is delivered to the\nsheriff, the sheriff shall levy upon the money that the judgment debtor\nis receiving or will receive by serving a copy of the income execution,\nindorsed to indicate the extent to which paid installments have\nsatisfied the judgment, upon the person or entity from whom the judgment\ndebtor is receiving or will receive money. The income execution shall be\nserved personally within any county in which the person or entity from\nwhom the judgment debtor is receiving or will receive money has an\noffice or place of business in the same manner as a summons, or by\ncertified mail return receipt requested, except that such service shall\nnot be made by delivery to a person authorized to receive service of\nsummons solely by a designation filed pursuant to a provision of law\nother than rule 318.\n (f) Withholding of installments. A person served with an income\nexecution shall withhold from money then or thereafter due to the\njudgment debtor installments as provided therein and pay them over to\nthe sheriff. If such person shall fail to so pay the sheriff, the\njudgment creditor may commence a proceeding against him for accrued\ninstallments. If the money due to the judgment debtor consists of salary\nor wages and his employment is terminated by resignation or dismissal at\nany time after service of the execution, the levy shall thereafter be\nineffective, and the execution shall be returned, unless the debtor is\nreinstated or re-employed within ninety days after such termination.\n (g) Statement on income execution. Any income execution delivered to\nthe sheriff on or after the effective date of this act shall contain the\nfollowing statement:\n THIS INCOME EXECUTION DIRECTS THE WITHHOLDING OF UP TO TEN PERCENT OF\nTHE JUDGMENT DEBTOR'S GROSS INCOME. IN CERTAIN CASES, HOWEVER, STATE OR\nFEDERAL LAW DOES NOT PERMIT THE WITHHOLDING OF THAT MUCH OF THE JUDGMENT\nDEBTOR'S GROSS INCOME. THE JUDGMENT DEBTOR IS REFERRED TO NEW YORK CIVIL\nPRACTICE LAW AND RULES § 5231 AND 15 UNITED STATES CODE § 1671 ET SEQ.\nI. LIMITATIONS ON THE AMOUNT THAT CAN BE WITHHELD.\n A. AN INCOME EXECUTION FOR INSTALLMENTS FROM A JUDGMENT DEBTOR'S GROSS\nINCOME CANNOT EXCEED TEN PERCENT (10%) OF THE JUDGMENT DEBTOR'S GROSS\nINCOME.\n B. IF A JUDGMENT DEBTOR'S WEEKLY DISPOSABLE EARNINGS ARE LESS THAN\nTHIRTY (30) TIMES THE CURRENT FEDERAL MINIMUM WAGE ( , PER HOUR),\nOR ( ), NO DEDUCTION CAN BE MADE FROM THE JUDGMENT DEBTOR'S\nEARNINGS UNDER THIS INCOME EXECUTION.\n C. A JUDGMENT DEBTOR'S WEEKLY DISPOSABLE EARNINGS CANNOT BE REDUCED\nBELOW THE AMOUNT ARRIVED AT BY MULTIPLYING THIRTY (30) TIMES THE CURRENT\nFEDERAL MINIMUM WAGE ( , PER HOUR), OR ( ), UNDER THIS INCOME\nEXECUTION.\n D. IF DEDUCTIONS ARE BEING MADE FROM A JUDGMENT DEBTOR'S EARNINGS\nUNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS\nOR FORMER SPOUSES, AND THOSE DEDUCTIONS EQUAL OR EXCEED TWENTY-FIVE\nPERCENT (25%) OF THE JUDGMENT DEBTOR'S DISPOSABLE EARNINGS, NO DEDUCTION\nCAN BE MADE FROM THE JUDGMENT DEBTOR'S EARNINGS UNDER THIS INCOME\nEXECUTION.\n E. IF DEDUCTIONS ARE BEING MADE FROM A JUDGMENT DEBTOR'S EARNINGS\nUNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS\nOR FORMER SPOUSES, AND THOSE DEDUCTIONS ARE LESS THAN TWENTY-FIVE\nPERCENT (25%) OF THE JUDGMENT DEBTOR'S DISPOSABLE EARNINGS, DEDUCTIONS\nMAY BE MADE FROM THE JUDGMENT DEBTOR'S EARNINGS UNDER THIS INCOME\nEXECUTION. HOWEVER, THE AMOUNT ARRIVED AT BY ADDING THE DEDUCTIONS FROM\nEARNINGS MADE UNDER THIS EXECUTION TO THE DEDUCTIONS MADE FROM EARNINGS\nUNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS\nOR FORMER SPOUSES CANNOT EXCEED TWENTY-FIVE PERCENT (25%) OF THE\nJUDGMENT DEBTOR'S DISPOSABLE EARNINGS.\n NOTE: NOTHING IN THIS NOTICE LIMITS THE PROPORTION OR AMOUNT WHICH MAY\nBE DEDUCTED UNDER ANY ORDER FOR ALIMONY, SUPPORT OR MAINTENANCE FOR\nFAMILY MEMBERS OR FORMER SPOUSES.\nII. EXPLANATION OF LIMITATIONS\nDEFINITIONS:\nDISPOSABLE EARNINGS\n DISPOSABLE EARNINGS ARE THAT PART OF AN INDIVIDUAL'S EARNINGS LEFT\nAFTER DEDUCTING THOSE AMOUNTS THAT ARE REQUIRED BY LAW TO BE WITHHELD\n(FOR EXAMPLE, TAXES, SOCIAL SECURITY, AND UNEMPLOYMENT INSURANCE, BUT\nNOT DEDUCTIONS FOR UNION DUES, INSURANCE PLANS, ETC.).\nGROSS INCOME\n GROSS INCOME IS SALARY, WAGES OR OTHER INCOME, INCLUDING ANY AND ALL\nOVERTIME EARNINGS, COMMISSIONS, AND INCOME FROM TRUSTS, BEFORE ANY\nDEDUCTIONS ARE MADE FROM SUCH INCOME.\nILLUSTRATIONS REGARDING EARNINGS:\n AMOUNT TO PAY OR DEDUCT FROM\n EARNINGS UNDER THIS INCOME\nIF DISPOSABLE EARNINGS IS: EXECUTION IS:\n(a) 30 TIMES FEDERAL MINIMUM NO PAYMENT OR DEDUCTION ALLOWED\n WAGE ( ) OR LESS\n(b) MORE THAN 30 TIMES FEDERAL THE LESSER OF: THE EXCESS OVER\n MINIMUM WAGE ( ) AND 30 TIMES THE FEDERAL MINIMUM\n LESS THAN 40 TIMES FEDERAL WAGE ( ) IN DISPOSABLE\n MINIMUM WAGE ( ) EARNINGS, or 10% OF GROSS\n EARNINGS\n(c) 40 TIMES THE FEDERAL THE LESSER OF: 25% OF DISPOSABLE\n MINIMUM WAGE ( ) OR MORE EARNINGS OR 10% OF GROSS\n EARNINGS.\nIII. NOTICE: YOU MAY BE ABLE TO CHALLENGE THIS INCOME EXECUTION THROUGH\n THE PROCEDURES PROVIDED IN CPLR § 5231 (i) AND CPLR § 5240\n IF YOU THINK THAT THE AMOUNT OF YOUR INCOME BEING DEDUCTED UNDER THIS\nINCOME EXECUTION EXCEEDS THE AMOUNT PERMITTED BY STATE OR FEDERAL LAW,\nYOU SHOULD ACT PROMPTLY BECAUSE THE MONEY WILL BE APPLIED TO THE\nJUDGMENT. IF YOU CLAIM THAT THE AMOUNT OF YOUR INCOME BEING DEDUCTED\nUNDER THIS INCOME EXECUTION EXCEEDS THE AMOUNT PERMITTED BY STATE OR\nFEDERAL LAW, YOU SHOULD CONTACT YOUR EMPLOYER OR OTHER PERSON PAYING\nYOUR INCOME. FURTHER, YOU MAY CONSULT AN ATTORNEY, INCLUDING LEGAL AID\nIF YOU QUALIFY. NEW YORK STATE LAW PROVIDES TWO PROCEDURES THROUGH WHICH\nAN INCOME EXECUTION CAN BE CHALLENGED:\nCPLR § 5231(i) MODIFICATION. AT ANY TIME, THE JUDGMENT DEBTOR MAY MAKE A\nMOTION TO A COURT FOR AN ORDER MODIFYING AN INCOME EXECUTION.\nCPLR § 5240 MODIFICATION OR PROTECTIVE ORDER: SUPERVISION OF\nENFORCEMENT. AT ANY TIME, THE JUDGMENT DEBTOR MAY MAKE A MOTION TO A\nCOURT FOR AN ORDER DENYING, LIMITING, CONDITIONING, REGULATING,\nEXTENDING OR MODIFYING THE USE OF ANY POST-JUDGMENT ENFORCEMENT\nPROCEDURE, INCLUDING THE USE OF INCOME EXECUTIONS.\n (h) Levy upon money payable by municipal corporation or the state. The\nlevy of an income execution served upon a municipal or public benefit\ncorporation, or board of education, shall be effective fifteen days\nafter such service. Such an execution shall specify the title or\nposition of the judgment debtor and the bureau, office, department or\nsubdivision in which he is employed and the municipal or public benefit\ncorporation, or board of education, shall be entitled to a fee of two\ndollars upon being served. A levy upon money payable directly by a\ndepartment of the state, or by an institution under its jurisdiction,\nshall be made by serving the income execution upon the head of the\ndepartment, or upon a person designated by him, at the office of the\ndepartment in Albany; a levy upon money payable directly upon the state\ncomptroller's warrant, or directly by a state board, commission, body or\nagency which is not within any department of the state, shall be made by\nserving the income execution 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.\n (i) Modification. At any time, the judgment creditor or the judgment\ndebtor may move, upon such notice as the court may direct, for an order\nmodifying an income execution.\n (j) Priority; delivery to another sheriff. Two or more income\nexecutions issued against the same judgment debtor, specifying the same\nperson or entity from whom the money is received and delivered to the\nsame or different enforcement officers shall be satisfied out of that\nmoney in the order in which the executions are delivered to an officer\nauthorized to levy in the county, town or city in which the debtor\nresides or, in any county in which the person or entity from whom the\njudgment debtor is receiving or will receive money has an office or\nplace of business, or where the judgment debtor is a non-resident, the\ncounty, town or city in which he or she is employed. If the applicable\ninterest rate changes pursuant to section five thousand four of this\nchapter while an execution is ongoing, the issuance of the amended\nexecution pursuant to section five thousand two hundred thirty of this\narticle shall retain the priority of the ongoing execution. If an income\nexecution delivered to a sheriff is returned unsatisfied in whole or in\npart because the sheriff to whom it was delivered is unable to find\nwithin the county the person or entity from whom the judgment debtor is\nreceiving or will receive money, the execution may be delivered to the\nsheriff of any county in which such person or entity has an office or\nplace of business. The priority of an income execution delivered to a\nsheriff within twenty days after its return by each previous sheriff\nshall be determined by the time of delivery to the first sheriff.\n (k) Accounting by sheriff. It shall be the duty of the sheriff to whom\nsuch income execution shall be delivered, from time to time and at least\nonce every ninety days from the time a levy shall be made thereunder, to\naccount for and pay over to the person entitled thereto all monies\ncollected thereon, less his lawful fees and expenses for collecting the\nsame. Provided, however, that if a judgment creditor issues an amended\nexecution pursuant to section five thousand two hundred thirty of this\narticle because the applicable interest rate changes pursuant to section\nfive thousand four of this chapter, any money collected in excess of the\njudgment amount shall be promptly returned to the debtor.\n