Relates to service of income execution upon a judgment debtor.
Ayes (63): Addabbo, Amedore, Avella, Bonacic, Boyle, Breslin, Carlucci, Comrie, Croci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Funke, Gallivan, Gianaris, Golden, Griffo, Hamilton, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Montgomery, Murphy, Nozzolio, O'Mara, Ortt, Panepinto, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousin, Valesky, Venditto, Young
TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to income execution service and levy upon default or failure to serve judgment debtor
To clarify and modernize the process of income execution service and levy upon default or failure to serve judgment debtor
SUMMARY OF PROVISIONS:
Section 1 of the bill amends subdivisions a, d, e, and j of section 5231 of the civil practice law and rules to clarify the process of income execution service on judgment debtors by designating the initial service upon a judgment debtor residing within New York as "first service". CPLR 5231 (d). In case of default by the resident judgment debtor or failure to serve such resident judgment debtor, the subsequent service levying upon the money that such resident judgment debtor is receiving or will receive is designated "second service". CPLR 5231(e). Section 1 of the bill also clarifies that second service shall be made upon a person or entity from whom the resident judgment debtor is receiving or will receive money. This change more closely tracks the language in current CPLR 5231(b), which permits the issuance of an income execution "(w)here a judgment debtor is receiving or will receive money from any source," and not simply from a "person" (emphasis added)
Subdivisions e and j of section 5231 of the civil practice law and rules are amended in Section 1 of the bill to allow for second service of an income execution upon the person or entity from whom the judgment debtor is receiving or will receive money in any county in which the person or entity has an office or place of business.
Section 1 further amends subdivisions a, d, e, and j of section 5231 of the civil practice law and rules for consistency and for the inclusion of gender neutral language.
Section 2 of the bill provides for an immediate effective date.
Section 5231 of the civil practice law and rules (CPLR) currently allows for the initial service of resident judgment debtors in the county in which they reside. See CPLR 5231(b), 5231(d). In the event of default. by such resident judgment debtor or failure to serve such resident judgment debtor, the sheriff or authorized enforcement officer shall serve personally within the county the person from whom such debtor is receiving or will receive money. See CPLR 5231(e).
At present, the statute additionally mandates that service upon a nonresident judgment debtor be made by serving the debtor's New York employer in the county the non-resident judgment debtor works See CPLR
5231(b). The process of income execution service upon a non-resident debtor would be unchanged by this legislation.
The statutory provisions governing the steps to perform an income execution in CPLR 5231, most of which have been on the books for over half a century, are in need of clarification and modernization given current business practices and the overall intent underlying this law. Specifically, this bill would keep intact the New York resident judgment debtor's ability to satisfy his or her obligation and directly pay installments outlined in the income execution. This is accomplished by "first service" of the income execution on the judgment debtor by the sheriff or other authorized enforcement officer. In the event such judgment debtor does not fulfill this obligation within the twenty days prescribed under CPLR 5231(e), or the sheriff is unable to serve the income execution on the judgment debtor, "second service" should be allowed by the enforcement officer upon a person or entity from whom the judgment debtor is receiving or will receive money at any office or place of business of that person or entity.
This second service provision will not prejudice the judgment debtor who has forfeited the chance to personally satisfy the installments due pursuant to the income execution by not complying with first service under. CPLR 5231(d), Once second service has been authorized by CPLR 5231(e), it is now the person or entity who owes money to the judgment debtor, and not the judgment debtor, that must be served. It should not matter if that person or entity is served where the judgment debtor lives or works, as long as service is made on that person or entity under the methods prescribed by CPLR 5231(e). In fact, many employers actually require that income executions be forwarded to a central office regardless of where the judgment debtor is employed. Therefore, this legislation would allow the enforcement officer to make second service, for example, at any of the offices of the debtor's employer notwithstanding where the debtor is actually employed.
This legislation would not circumvent one of the central goals of CPLR 5231, which is to afford the judgment debtor the option to pay the installments due pursuant to the income execution without his or her employer being made aware of the debt. Rather, these amendments would ensure that once this option has not been exercised by the judgment debtor, there is a clean and efficient path for second service of an income execution on the person or entity who owes money to the judgment debtor.
STATE OF NEW YORK ________________________________________________________________________ 5110 2015-2016 Regular Sessions IN SENATE May 1, 2015 ___________Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to income execution service and levy upon default or failure to serve judgment debtor THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions (a), (d), (e) and (j) of section 5231 of the civil practice law and rules, such section as renumbered by chapter 315 of the laws of 1962, subdivision (a) as amended by chapter 532 of the laws of 1963, subdivision (d) as amended by chapter 183 of the laws of 1990, subdivision (e) as amended by chapter 88 of the laws of 1975, and subdivisions (e) and (j) as relettered by chapter 829 of the laws of 1987, are amended to read as follows: (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. (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.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10797-01-5 S. 5110 2
(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 sher- iff, 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 satis- fied 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
[the]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. (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 [may be found]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. S 2. This act shall take effect immediately.