1750-1 Van Buren Assoc LLC v Reid
Annotate this CaseDecided on February 22, 2012
Civil Court of the City of New York, Bronx County
1750-1 Van Buren Assoc LLC, Claimant,
against
Bason Reid, Defendant.
30568/10
Appearance of Counsel-
Plaintiff- Julian S. Kaufman Esq., Rogers, Wughalter, Kaufman, Corredine and Zinno, Esqs., 800 Grand Concourse, Bronx, NY 10451, 718-585-7000
Respondent- David M. Dore, Esq., Law Office of David M. Dore, 708 Third Avenue, 6th Floor, New York, NY 10017, 212-209-3831
Elizabeth A. Taylor, J.
The following papers numbered 1 to ___ read on this motion, _______________________
NoOn Calendar ofPAPERS NUMBERED
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed1-2
Answering Affidavit and Exhibits-3-4Replying Affidavit and Exhibits-5Affidavit-Pleadings Exhibit-Stipulation Referee's Report MinutesFiled papers____________________________________________________________________________________________Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Order to show cause for an order pursuant to CPLR § 5231, vacating and setting aside the Income Execution dated May 17, 2011 as issued by the claimant, is decided as follows.
Defendant argues that the claimant failed to provide him with the 20 day notice that is required prior to the implementation of the income execution served on his employer. Defendant asserts that he never received the notice and suggests that the claimant sought to humiliate him at his place of employment by ignoring the notice requirement. Defendant further argues that the income execution fails to comply with CPLR § 5231. He notes that his income is currently subject to a deduction for child support which exceeds more than 25% of his disposable income. He asserts that the claimant is prohibited from deducting any other monies from his income based upon the deductions taken for child support. He indicates that the claimant has wrongfully deducted $980.00 from his income and requests that such amount be returned.
In opposition, claimant argues that the instant request is improper and untimely. Claimant notes that it has a judgment against the defendant and that a previous [*2]application to vacate the judgment was denied. Claimant also notes that the defendant's time to perfect an appeal and to request leave to reargue have expired. The claimant further argues that the defendant's action is against his employer if money was wrongfully deducted from his pay.
CPLR § 5231 (d) directs that "[w]ithin 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." The claimant provided nothing on this record to dispute the defendant's claim that he was never served with the income execution prior to it being served on his employer. Case law has established that a purpose of the requirements of CPLR § 5231 (d) is to provide the judgment debtor with an opportunity to pay the judgment himself prior to the issuing of the execution on his employer. See for example Matter of Schleimer v. Gross, 46 Misc 2d 931 (Nassau County 1965). Based upon the record herein, or the lack thereof, the defendant was not given the opportunity to satisfy or make installment payments on the judgment as allowed by CPLR § 5231 (e).
Nevertheless, even if the court determined that the defendant was properly served with the income execution, a stay or modification of the execution would be warranted pursuant to CPLR § 5231(b)(iii). It is well established that if an income execution for support enforcement is in effect, more than 25% of the judgment debtor's disposable earnings may not be deducted unless it is for family support. See American Exp. Centurion v. Melia, 155 Misc 2d 587 (NY City Civ. Ct. 1992); Bigness v. Obit, 112 Misc 2d 1078 (Onondaga County 1982). The defendant provided two pay stubs on the instant record to prove that child support is being deducted from his income. Both pay stubs indicate different amounts that were deducted to satisfy the defendant's child support obligation. The record herein clearly reflects that the judgment sought to be enforced by the claimant is not based on a family support obligation.
CPLR § 5213 (c)(ii) provides "[a]s 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." This court takes notice that the defendant's disposable income and the amount deducted for child support varied for the two pay stubs submitted. For the pay period ending October 14, 2011, the defendant's disposable earnings totaled $870.32 ($988.25 (gross pay) - $117.93 (deductions required by law)). Child support in the amount of $258.00 was deducted from the defendant's pay during this pay period. As a result, 29.6% of the defendant's disposable earnings were used to satisfy his support obligation. Clearly, the defendant's employer was not lawfully allowed to deduct any additional amount from the defendant's earnings because more than 25% of his disposable earnings were used to satisfy his support obligation. Bigness, 112 Misc 2d 1078.
The defendant's disposable earnings for the pay period ending October 28, 2011 totaled $895.92 ($1022.50 (gross pay) - $126.58 (deductions required by law)). Child support in the amount of $172.00 was deducted from the defendant's pay during this pay period. As a result, only 19.2% of the defendant's disposable earnings was used to [*3]satisfy his support obligation. An additional 5.8% of the defendant's disposable earnings were allowed to be deducted from the defendant's earnings to pay towards the claimant's judgment. The defendant's employer deducted a total of $274.25 from the defendant's pay to satisfy the child support and claimant's income executions. This amount reflects 30.6% of the defendant's income for this specific pay period. Pursuant to CPLR § 5231(b)(iii), 5.6% of the amount deducted from the defendant's earnings exceeded the statutory allowed amount of 25%. Accordingly, the defendant's employer should have only deducted $51.98 as partial payment of the claimant's judgment. Instead, the defendant's employer deducted $102.25 towards the claimant's judgment. Clearly, the defendant's employer deducted more than is allowed by CPLR § 5231. Nevertheless, case law has established that the proper remedy is not to vacate an income execution although the employer has deducted too much, but to compel the employer to comply with the maximum garnishment limits. Bigness, 112 Misc 2d 1078.
Based upon the facts and circumstances herein, this court is compelled to vacate the income execution served on defendant's employer in light of the claimant's failure to establish on this record that the defendant was properly served with the execution as required by CPLR § 5231 (d). However, the claimant may properly re-serve the income execution in accordance with CPLR § 5231, and such deductions may be made from the defendant's disposable earning as allowed by CPLR § 5231(b)(iii). Particularly, the defendant's employer may deduct up to 25% of the defendant's disposable earnings to satisfy the defendant's support obligation and the claimant's judgment herein. The claimant's judgment shall continue to be inferior to the defendant's child support obligation which shall take priority. The defendant's employer may only deduct an amount not exceeding 25% of the defendant's disposable earnings after the child support obligation has been deducted.
The branch of the motion for the return of $980.00, taken from defendant's income in violation of CPLR § 5231, is denied without prejudice. It is noted that movant has failed to submit proof on this record to establish which deductions from his salary exceeded 25% of his disposable income, and the amount of refund he may be entitled to.
The foregoing shall constitute the decision and order of this court.
Dated: _________________
J.C.C.
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