2006 New York Code - Income Execution.



 
    § 5231. Income execution. (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  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
  shall commence payment of the  installments  specified  to  the  sheriff
  forthwith  and that, upon his default, the execution will be served upon
  the person from whom he is receiving or will receive money.
    (b) Issuance. Where a judgment debtor is  receiving  or  will  receive
  money from any source, an income execution for installments therefrom of
  not  more  than  ten  percent thereof may be issued and delivered to the
  sheriff of the county in which the judgment debtor resides or, where the
  judgment debtor is a non-resident, the county in which he  is  employed;
  provided,  however,  that  (i)  no  amount  shall  be  withheld from the
  judgment debtor's earnings pursuant to an income execution for any  week
  unless  the  disposable  earnings  of  the judgment debtor for that week
  exceed thirty times the federal minimum hourly wage  prescribed  in  the
  Fair  Labor  Standards Act of 1938 as in effect at the time the earnings
  are payable;  (ii)  the  amount  withheld  from  the  judgment  debtor's
  earnings  pursuant  to an income execution for any week shall not exceed
  twenty-five percent of the disposable earnings of  the  judgment  debtor
  for  that  week,  or, the amount by which the disposable earnings of the
  judgment debtor for that week exceed thirty times  the  federal  minimum
  hourly  wage  prescribed  by  the Fair Labor Standards Act of 1938 as in
  effect at the time the earnings are payable, whichever is less; (iii) if
  the earnings of the judgment debtor are also subject to  deductions  for
  alimony,  support  or  maintenance  for family members or former spouses
  pursuant to section five thousand two hundred forty-one or section  five
  thousand two hundred forty-two of this article, the amount withheld from
  the judgment debtor's earnings pursuant to this section shall not exceed
  the  amount  by  which twenty-five percent of the disposable earnings of
  the judgment debtor for that week exceeds the amount deducted  from  the
  judgment  debtor's earnings in accordance with section five thousand two
  hundred forty-one or section five thousand two hundred forty-two of this
  article. Nothing in this section shall be construed to modify, abrogate,
  impair, or affect  any  exemption  from  the  satisfaction  of  a  money
  judgment otherwise granted by law.
    (c) Definition of earnings and disposable earnings. (i) As used herein
  earnings  means  compensation  paid  or  payable  for personal services,
  whether denominated as wages, salary, commission, bonus,  or  otherwise,
  and  includes  periodic  payments  pursuant  to  a pension or retirement
  program.
    (ii) As 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.
    (d) Service upon debtor. 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.
    (e) Levy upon default or failure to serve debtor. If a judgment debtor
  fails  to  pay  installments pursuant to an income execution served upon
  him 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 sheriff, 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 satisfied the judgment, upon the person from whom
  the judgment debtor is receiving or will receive money personally within
  the  county  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.
    (f) Withholding of  installments.  A  person  served  with  an  income
  execution  shall  withhold  from  money  then  or  thereafter due to the
  judgment debtor installments as provided therein and pay  them  over  to
  the  sheriff.  If  such  person  shall  fail  to so pay the sheriff, the
  judgment creditor may commence a  proceeding  against  him  for  accrued
  installments. If the money due to the judgment debtor consists of salary
  or wages and his employment is terminated by resignation or dismissal at
  any  time  after  service of the execution, the levy shall thereafter be
  ineffective, and the execution shall be returned, unless the  debtor  is
  reinstated or re-employed within ninety days after such termination.
    (g)  Statement  on income execution. Any income execution delivered to
  the sheriff on or after the effective date of this act shall contain the
  following statement:
 
    THIS INCOME EXECUTION DIRECTS THE WITHHOLDING OF UP TO TEN PERCENT  OF
  THE  JUDGMENT DEBTOR'S GROSS INCOME. IN CERTAIN CASES, HOWEVER, STATE OR
  FEDERAL LAW DOES NOT PERMIT THE WITHHOLDING OF THAT MUCH OF THE JUDGMENT
  DEBTOR'S GROSS INCOME. THE JUDGMENT DEBTOR IS REFERRED TO NEW YORK CIVIL
  PRACTICE LAW AND RULES § 5231 AND 15 UNITED STATES CODE § 1671 ET SEQ.
 
  I. LIMITATIONS ON THE AMOUNT THAT CAN BE WITHHELD.
 
    A. AN INCOME EXECUTION FOR INSTALLMENTS FROM A JUDGMENT DEBTOR'S GROSS
  INCOME CANNOT EXCEED TEN PERCENT (10%) OF THE  JUDGMENT  DEBTOR'S  GROSS
  INCOME.
    B.  IF  A  JUDGMENT  DEBTOR'S WEEKLY DISPOSABLE EARNINGS ARE LESS THAN
  THIRTY (30) TIMES THE CURRENT FEDERAL MINIMUM WAGE (       , PER  HOUR),
  OR  (            ),  NO DEDUCTION CAN BE MADE FROM THE JUDGMENT DEBTOR'S
  EARNINGS UNDER THIS INCOME EXECUTION.
    C. A JUDGMENT DEBTOR'S WEEKLY DISPOSABLE EARNINGS  CANNOT  BE  REDUCED
  BELOW THE AMOUNT ARRIVED AT BY MULTIPLYING THIRTY (30) TIMES THE CURRENT
  FEDERAL  MINIMUM WAGE (      , PER HOUR), OR (      ), UNDER THIS INCOME
  EXECUTION.
    D. IF DEDUCTIONS ARE BEING MADE  FROM  A  JUDGMENT  DEBTOR'S  EARNINGS
  UNDER  ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS
  OR FORMER SPOUSES, AND THOSE  DEDUCTIONS  EQUAL  OR  EXCEED  TWENTY-FIVE
  PERCENT (25%) OF THE JUDGMENT DEBTOR'S DISPOSABLE EARNINGS, NO DEDUCTION
  CAN  BE  MADE  FROM  THE  JUDGMENT  DEBTOR'S  EARNINGS UNDER THIS INCOME
  EXECUTION.
    E. IF DEDUCTIONS ARE BEING MADE  FROM  A  JUDGMENT  DEBTOR'S  EARNINGS
  UNDER  ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY MEMBERS
  OR FORMER SPOUSES,  AND  THOSE  DEDUCTIONS  ARE  LESS  THAN  TWENTY-FIVE
  PERCENT  (25%)  OF THE JUDGMENT DEBTOR'S DISPOSABLE EARNINGS, DEDUCTIONS
  MAY BE MADE FROM  THE  JUDGMENT  DEBTOR'S  EARNINGS  UNDER  THIS  INCOME
  EXECUTION.  HOWEVER, THE AMOUNT ARRIVED AT BY ADDING THE DEDUCTIONS FROM
  EARNINGS  MADE UNDER THIS EXECUTION TO THE DEDUCTIONS MADE FROM EARNINGS
  UNDER ANY ORDERS FOR ALIMONY, SUPPORT OR MAINTENANCE FOR FAMILY  MEMBERS
  OR  FORMER  SPOUSES  CANNOT  EXCEED  TWENTY-FIVE  PERCENT  (25%)  OF THE
  JUDGMENT DEBTOR'S DISPOSABLE EARNINGS.
    NOTE: NOTHING IN THIS NOTICE LIMITS THE PROPORTION OR AMOUNT WHICH MAY
  BE DEDUCTED UNDER ANY ORDER FOR  ALIMONY,  SUPPORT  OR  MAINTENANCE  FOR
  FAMILY MEMBERS OR FORMER SPOUSES.
 
  II. EXPLANATION OF LIMITATIONS
 
  DEFINITIONS:
  DISPOSABLE EARNINGS
    DISPOSABLE  EARNINGS  ARE  THAT  PART OF AN INDIVIDUAL'S EARNINGS LEFT
  AFTER DEDUCTING THOSE AMOUNTS THAT ARE REQUIRED BY LAW  TO  BE  WITHHELD
  (FOR  EXAMPLE,  TAXES,  SOCIAL SECURITY, AND UNEMPLOYMENT INSURANCE, BUT
  NOT DEDUCTIONS FOR UNION DUES, INSURANCE PLANS, ETC.).
  GROSS INCOME
    GROSS INCOME IS SALARY, WAGES OR OTHER INCOME, INCLUDING ANY  AND  ALL
  OVERTIME  EARNINGS,  COMMISSIONS,  AND  INCOME  FROM  TRUSTS, BEFORE ANY
  DEDUCTIONS ARE MADE FROM SUCH INCOME.
 
  ILLUSTRATIONS REGARDING EARNINGS:
                                          AMOUNT TO PAY OR DEDUCT FROM
                                            EARNINGS UNDER THIS INCOME
  IF DISPOSABLE EARNINGS IS:                EXECUTION IS:
 
  (a)  30 TIMES FEDERAL MINIMUM           NO PAYMENT OR DEDUCTION ALLOWED
       WAGE (      ) OR LESS
 
  (b)  MORE THAN 30 TIMES FEDERAL         THE LESSER OF: THE EXCESS OVER
       MINIMUM WAGE (      ) AND            30 TIMES THE FEDERAL MINIMUM
       LESS THAN 40 TIMES FEDERAL           WAGE (      ) IN DISPOSABLE
       MINIMUM WAGE (      )                EARNINGS, or 10% OF GROSS
                                            EARNINGS
 
  (c)  40 TIMES THE FEDERAL               THE LESSER OF: 25% OF DISPOSABLE
       MINIMUM WAGE (      ) OR MORE        EARNINGS OR 10% OF GROSS
                                            EARNINGS.
 
  III. NOTICE: YOU MAY BE ABLE TO CHALLENGE THIS INCOME EXECUTION  THROUGH
       THE PROCEDURES PROVIDED IN CPLR § 5231 (i) AND CPLR § 5240
    IF  YOU THINK THAT THE AMOUNT OF YOUR INCOME BEING DEDUCTED UNDER THIS
  INCOME EXECUTION EXCEEDS THE AMOUNT PERMITTED BY STATE OR  FEDERAL  LAW,
  YOU  SHOULD  ACT  PROMPTLY  BECAUSE  THE  MONEY  WILL  BE APPLIED TO THE
  JUDGMENT. IF YOU CLAIM THAT THE AMOUNT OF  YOUR  INCOME  BEING  DEDUCTED
  UNDER  THIS  INCOME  EXECUTION  EXCEEDS THE AMOUNT PERMITTED BY STATE OR
  FEDERAL LAW, YOU SHOULD CONTACT YOUR EMPLOYER  OR  OTHER  PERSON  PAYING
  YOUR  INCOME.  FURTHER, YOU MAY CONSULT AN ATTORNEY, INCLUDING LEGAL AID
  IF YOU QUALIFY. NEW YORK STATE LAW PROVIDES TWO PROCEDURES THROUGH WHICH
  AN INCOME EXECUTION CAN BE CHALLENGED:
  CPLR § 5231(i) MODIFICATION. AT ANY TIME, THE JUDGMENT DEBTOR MAY MAKE A
  MOTION TO A COURT FOR AN ORDER MODIFYING AN INCOME EXECUTION.
  CPLR  §  5240  MODIFICATION  OR   PROTECTIVE   ORDER:   SUPERVISION   OF
  ENFORCEMENT.  AT  ANY  TIME,  THE JUDGMENT DEBTOR MAY MAKE A MOTION TO A
  COURT  FOR  AN  ORDER  DENYING,  LIMITING,   CONDITIONING,   REGULATING,
  EXTENDING   OR  MODIFYING  THE  USE  OF  ANY  POST-JUDGMENT  ENFORCEMENT
  PROCEDURE, INCLUDING THE USE OF INCOME EXECUTIONS.
    (h) Levy upon money payable by municipal corporation or the state. The
  levy of an income execution served upon a municipal  or  public  benefit
  corporation,  or  board  of  education,  shall be effective fifteen days
  after such service.  Such  an  execution  shall  specify  the  title  or
  position  of  the  judgment debtor and the bureau, office, department or
  subdivision in which he is employed and the municipal or public  benefit
  corporation,  or  board  of education, shall be entitled to a fee of two
  dollars upon being served. A levy  upon  money  payable  directly  by  a
  department  of  the  state, or by an institution under its jurisdiction,
  shall be made by serving the income  execution  upon  the  head  of  the
  department,  or  upon  a  person designated by him, at the office of the
  department in Albany; a levy upon money payable directly upon the  state
  comptroller's warrant, or directly by a state board, commission, body or
  agency which is not within any department of the state, shall be made by
  serving  the  income  execution  upon  the state department of audit and
  control at its office in Albany. Service at the office of  a  department
  of  the  state  in  Albany  may  be made by the sheriff of any county by
  registered or certified mail, return receipt requested.
    (i) Modification. At any time, the judgment creditor or  the  judgment
  debtor  may move, upon such notice as the court may direct, for an order
  modifying an income execution.
    (j)  Priority;  delivery  to  another  sheriff.  Two  or  more  income
  executions  issued against the same judgment debtor, specifying the same
  person 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,
  where the judgment debtor is a non-resident, the county, town or city in
  which  he  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 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. 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.
    (k) Accounting by sheriff. It shall be the duty of the sheriff to whom
  such income execution shall be delivered, from time to time and at least
  once every ninety days from the time a levy shall be made thereunder, to
  account for and pay over to  the  person  entitled  thereto  all  monies
  collected  thereon, less his lawful fees and expenses for collecting the
  same.


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