2012 New York Consolidated Laws
CVP - Civil Practice Law & Rules
Article 52 - (5201 - 5253) ENFORCEMENT OF MONEY JUDGMENTS
5222 - Restraining notice.

 
    §  5222.  Restraining  notice.    (a)  Issuance; on whom served; form;
  service. A restraining notice may be issued by the clerk of the court or
  the attorney for the judgment creditor as officer of the  court,  or  by
  the  support  collection  unit  designated  by  the  appropriate  social
  services district. It may be served upon any person, except the employer
  of a judgment  debtor  or  obligor  where  the  property  sought  to  be
  restrained  consists  of  wages  or  salary  due or to become due to the
  judgment debtor or obligor. It shall be served personally  in  the  same
  manner  as  a summons or by registered or certified mail, return receipt
  requested or if issued by the support collection unit, by regular  mail,
  or  by electronic means as set forth in subdivision (g) of this section.
  It shall specify all of the parties to the action,  the  date  that  the
  judgment  or  order  was entered, the court in which it was entered, the
  amount of the judgment or order and the amount  then  due  thereon,  the
  names  of  all  parties  in whose favor and against whom the judgment or
  order was entered, it shall set forth subdivision (b)  and  shall  state
  that  disobedience  is  punishable  as a contempt of court, and it shall
  contain an original signature or copy of the original signature  of  the
  clerk  of  the  court  or attorney or the name of the support collection
  unit which issued it. Service of a restraining notice upon a  department
  or  agency of the state or upon an institution under its direction shall
  be made by serving a copy upon the head of the department, or the person
  designated by him or her and upon the  state  department  of  audit  and
  control  at  its  office  in  Albany; a restraining notice served upon a
  state board,  commission,  body  or  agency  which  is  not  within  any
  department  of the state shall be made by serving the restraining notice
  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, or if issued  by  the  support  collection  unit,  by
  regular mail.
    (b) Effect of restraint; prohibition of transfer; duration. A judgment
  debtor  or obligor served with a restraining notice is forbidden to make
  or suffer any  sale,  assignment,  transfer  or  interference  with  any
  property  in  which  he  or  she has an interest, except as set forth in
  subdivisions (h) and (i) of this section, and except upon  direction  of
  the  sheriff or pursuant to an order of the court, until the judgment or
  order is satisfied or vacated. A restraining notice served upon a person
  other than the judgment debtor or obligor is effective only if,  at  the
  time of service, he or she owes a debt to the judgment debtor or obligor
  or  he or she is in the possession or custody of property in which he or
  she knows or has reason to believe the judgment debtor or obligor has an
  interest, or if the judgment creditor or  support  collection  unit  has
  stated  in the notice that a specified debt is owed by the person served
  to the judgment debtor or obligor or that the judgment debtor or obligor
  has an interest in specified property in the possession  or  custody  of
  the  person served. All property in which the judgment debtor or obligor
  is known or believed to have an interest then in and  thereafter  coming
  into the possession or custody of such a person, including any specified
  in  the  notice, and all debts of such a person, including any specified
  in the notice, then due and thereafter coming due to the judgment debtor
  or obligor, shall be subject to  the  notice  except  as  set  forth  in
  subdivisions  (h) and (i) of this section. Such a person is forbidden to
  make or suffer any sale, assignment or transfer of, or any  interference
  with,  any  such  property, or pay over or otherwise dispose of any such
  debt, to any person other than the sheriff  or  the  support  collection
  unit,  except  as set forth in subdivisions (h) and (i) of this section,
  and except upon direction of the sheriff or pursuant to an order of  the

  court,  until the expiration of one year after the notice is served upon
  him or her, or until the judgment or  order  is  satisfied  or  vacated,
  whichever  event first occurs. A judgment creditor or support collection
  unit  which  has  specified  personal  property or debt in a restraining
  notice shall be liable to the owner of the property  or  the  person  to
  whom the debt is owed, if other than the judgment debtor or obligor, for
  any  damages sustained by reason of the restraint. If a garnishee served
  with a restraining notice withholds the payment of  money  belonging  or
  owed  to  the judgment debtor or obligor in an amount equal to twice the
  amount due on the judgment or  order,  the  restraining  notice  is  not
  effective as to other property or money.
    (c)  Subsequent  notice. Leave of court is required to serve more than
  one restraining notice upon the same person with  respect  to  the  same
  judgment  or  order.  A  judgment creditor shall not serve more than two
  restraining notices per year upon a natural person's banking institution
  account.
    (d) Notice to judgment debtor or obligor. Except where the  provisions
  of   section   fifty-two   hundred  twenty-two-a  of  this  article  are
  applicable, pursuant to subdivision (a) of such section, if a notice  in
  the  form  prescribed  in  subdivision  (e) of this section has not been
  given to the judgment debtor or obligor within a year before service  of
  a restraining notice, a copy of the restraining notice together with the
  notice to judgment debtor or obligor shall be mailed by first class mail
  or  personally  delivered  to  each  judgment debtor or obligor who is a
  natural person within four  days  of  the  service  of  the  restraining
  notice.  Such  notice  shall  be  mailed  to the defendant at his or her
  residence  address;  or  in  the  event  such  mailing  is  returned  as
  undeliverable  by  the  post  office, or if the residence address of the
  defendant is unknown, then to the defendant in  care  of  the  place  of
  employment  of the defendant if known, in an envelope bearing the legend
  "personal and confidential" and not indicating on the  outside  thereof,
  by  the  return  address or otherwise, that the communication is from an
  attorney or concerns a judgment or order; or if  neither  the  residence
  address  nor  the  place of employment of the defendant is known then to
  the defendant at any other known address.
    (e) Content of notice. The notice required by subdivision (d) of  this
  section shall be in substantially the following form and may be included
  in the restraining notice:
                    NOTICE TO JUDGMENT DEBTOR OR OBLIGOR
    Money  or  property  belonging  to  you may have been taken or held in
  order to satisfy a judgment or order which has been entered against you.
  Read this carefully.
                   YOU MAY BE ABLE TO GET YOUR MONEY BACK
    State and federal laws prevent certain money or  property  from  being
  taken  to satisfy judgments or orders. Such money or property is said to
  be "exempt". The following is a partial  list  of  money  which  may  be
  exempt:
    1. Supplemental security income, (SSI);
    2. Social security;
    3. Public assistance (welfare);
    4. Spousal support, maintenance (alimony) or child support;
    5. Unemployment benefits;
    6. Disability benefits;
    7. Workers' compensation benefits;
    8. Public or private pensions;
    9. Veterans benefits;
    10.  Ninety  percent  of your wages or salary earned in the last sixty
  days;

    11.  Twenty-five  hundred  dollars  of  any  bank  account  containing
  statutorily  exempt  payments  that  were deposited electronically or by
  direct deposit within the  last  forty-five  days,  including,  but  not
  limited to, your social security, supplemental security income, veterans
  benefits,   public   assistance,   workers'  compensation,  unemployment
  insurance, public or private  pensions,  railroad  retirement  benefits,
  black lung benefits, or child support payments;
    12. Railroad retirement; and
    13. Black lung benefits.
    If  you  think  that  any of your money that has been taken or held is
  exempt, you must act promptly because the money may be  applied  to  the
  judgment  or  order.  If  you claim that any of your money that has been
  taken or held is exempt, you may contact the person sending this notice.
    Also, YOU MAY CONSULT AN ATTORNEY, INCLUDING ANY FREE  LEGAL  SERVICES
  ORGANIZATION  IF  YOU  QUALIFY.  You  can  also  go  to court without an
  attorney to get your money back. Bring this notice with you when you go.
  You are allowed to try to prove to a judge that  your  money  is  exempt
  from  collection  under  New York civil practice law and rules, sections
  fifty-two  hundred  twenty-two-a,  fifty-two  hundred  thirty-nine   and
  fifty-two  hundred  forty. If you do not have a lawyer, the clerk of the
  court may give you forms to help you prove your account contains  exempt
  money that the creditor cannot collect. The law (New York civil practice
  law  and  rules, article four and sections fifty-two hundred thirty-nine
  and fifty-two hundred forty) provides a procedure for determination of a
  claim to an exemption.
    (f) For the purposes of this  section  "order"  shall  mean  an  order
  issued  by  a  court  of competent jurisdiction directing the payment of
  support, alimony or maintenance upon which a  "default"  as  defined  in
  paragraph   seven  of  subdivision  (a)  of  section  fifty-two  hundred
  forty-one of this article has been established subject to the procedures
  established for the determination of a  "mistake  of  fact"  for  income
  executions  pursuant  to  subdivision  (e)  of section fifty-two hundred
  forty-one of this article except that for the purposes of  this  section
  only  a  default  shall  not  be  founded upon retroactive child support
  obligations as defined in paragraph (a) of subdivision  one  of  section
  four  hundred  forty  of  the  family  court  act and subdivision one of
  section two hundred forty and paragraph b of subdivision nine of section
  two hundred thirty-six of the domestic relations law.
    (g)  Restraining  notice  in  the  form  of  magnetic  tape  or  other
  electronic  means.  Where  such  person  consents  thereto in writing, a
  restraining notice in the form of  magnetic  tape  or  other  electronic
  means, as defined in subdivision (f) of rule twenty-one hundred three of
  this chapter, may be served upon a person other than the judgment debtor
  or  obligor.  A restraining notice in such form shall contain all of the
  information required to be  specified  in  a  restraining  notice  under
  subdivision  (a),  except  for  the  original  signature  or copy of the
  original signature of the clerk or attorney who issued  the  restraining
  notice.  The  provisions of this subdivision notwithstanding, the notice
  required by subdivisions (d) and (e) shall  be  given  to  the  judgment
  debtor or obligor in the written form set forth therein.
    (h)  Effect  of  restraint  on  judgment  debtor's banking institution
  account into which statutorily exempt payments are  made  electronically
  or  by direct deposit. Notwithstanding the provisions of subdivision (b)
  of this section, if direct deposit  or  electronic  payments  reasonably
  identifiable  as statutorily exempt payments as defined in paragraph two
  of subdivision (l) of section fifty-two hundred  five  of  this  article
  were  made  to  the  judgment debtor's account during the forty-five day
  period preceding the date that the restraining notice was served on  the

  banking institution, then the banking institution shall not restrain two
  thousand  five  hundred dollars in the judgment debtor's account. If the
  account contains an amount equal to  or  less  than  two  thousand  five
  hundred dollars, the account shall not be restrained and the restraining
  notice  shall  be  deemed  void.  Nothing  in  this subdivision shall be
  construed to limit  a  banking  institution's  right  or  obligation  to
  restrain  or  remove  such  funds  from the judgment debtor's account if
  required by 42 U.S.C. § 659 or 38 U.S.C. § 5301 or  by  a  court  order.
  Nothing  in this subdivision shall alter the exempt status of funds that
  are protected from execution, levy,  attachment,  garnishment  or  other
  legal  process,  under section fifty-two hundred five of this article or
  under any other provision of state or federal law, or affect  the  right
  of a judgment debtor to claim such exemption.
    (i)  Effect  of  restraint  on  judgment  debtor's banking institution
  account. A restraining notice issued pursuant to this section shall  not
  apply  to  an  amount  equal  to or less than the greater of two hundred
  forty times the federal minimum hourly wage prescribed in the Fair Labor
  Standards Act of 1938 or two  hundred  forty  times  the  state  minimum
  hourly wage prescribed in section six hundred fifty-two of the labor law
  as  in  effect at the time the earnings are payable (as published on the
  websites of  the  United  States  department  of  labor  and  the  state
  department  of  labor) except such part thereof as a court determines to
  be unnecessary for the reasonable requirements of  the  judgment  debtor
  and  his  or  her  dependents.  This  amount shall be equal to seventeen
  hundred sixteen dollars on the effective date of this  subdivision,  and
  shall rise to seventeen hundred forty dollars on July twenty-fourth, two
  thousand  nine,  and  shall  rise  thereafter in tandem with the minimum
  wage. Nothing in this subdivision shall be construed to limit a  banking
  institution's  right or obligation to restrain or remove such funds from
  the judgment debtor's account if required by  42  U.S.C.  §  659  or  38
  U.S.C.  §  5301  or  by a court order. Where a judgment debtor's account
  contains an amount equal to or less than ninety percent of  the  greater
  of two hundred forty times the federal minimum hourly wage prescribed in
  the  Fair  Labor  Standards  Act  of 1938 or two hundred forty times the
  state minimum hourly wage prescribed in section six hundred fifty-two of
  the labor law as in effect at the time  the  earnings  are  payable  (as
  published  on  the websites of the United States department of labor and
  the state department of labor), the account shall not be restrained  and
  the  restraining  notice  shall be deemed void, except as to those funds
  that  a  court  determines  to  be  unnecessary   for   the   reasonable
  requirements  of  the judgment debtor and his or her dependents. Nothing
  in this subdivision shall alter the exempt status  of  funds  which  are
  exempt  from  execution,  levy, attachment or garnishment, under section
  fifty-two hundred five of this article or under any other  provision  of
  state  or  federal  law, or the right of a judgment debtor to claim such
  exemption.
    (j) Fee for banking institution's costs in  processing  a  restraining
  notice  for  an  account. In the event that a banking institution served
  with a restraining notice cannot lawfully restrain a  judgment  debtor's
  banking  institution  account,  or a restraint is placed on the judgment
  debtor's account in violation  of  any  section  of  this  chapter,  the
  banking   institution  shall  charge  no  fee  to  the  judgment  debtor
  regardless of any terms of agreement, or  schedule  of  fees,  or  other
  contract between the judgment debtor and the banking institution.
    (k) The provisions of subdivisions (h), (i) and (j) of this section do
  not  apply  when  the  state  of  New  York,  or  any of its agencies or
  municipal corporations is the judgment creditor, or if the debt enforced
  is for child support, spousal support, maintenance or alimony,  provided

  that  the restraining notice contains a legend at the top thereof, above
  the caption, in sixteen point bold type  with  the  following  language:
  "The  judgment creditor is the state of New York, or any of its agencies
  or  municipal  corporations,  AND/OR  the  debt  enforced  is  for child
  support, spousal support, maintenance or alimony.".