Nord v Berman

[*1] Nord v Berman 2004 NY Slip Op 51150(U) Decided on October 8, 2004 District Court Of Nassau County, Second District Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 8, 2004
District Court of Nassau County, Second District

AMY S. NORD, ESQ., Plaintiff(s)

against

KENNETH BERMAN, Defendant



6306/91



Kenneth Berman, defendant pro se; Kirschenbaum & Phillips, P.C., attorneys for plaintiff.

Scott Fairgrieve, J.

Movant seeks an order of this Court, pursuant to CPLR 5240, modifying a current order of an enforcement [an income execution which garnishes 10% of movant's current gross income].

Initially the Court notes CPLR 5240's provision that any interested person may move to modify an enforcement device "upon such notice as (the Court) may require." This insures that proper notice of the application is given to the proper parties. This language device contemplates movant's use of an order to show cause. The movant herein made an ordinary motion and did not proceed by way of order to show cause, which it shall do upon any future request for this relief.

CPLR 5240 grants the Court's broad powers over the use of enforcement procedures. Its purpose is to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts (see, Matter of Sanders v. Manufacturers Hanover Trust Co., 229 AD2d 544, 1017 [NYAD 2d Dept 1996]). CPLR 5240 authorizes the Court, "in the interest of justice, and in its discretion, to reduce [an] income execution where there would be extreme hardship, taking into consideration the debtor's requirements, his or her dependents, take-home pay and other relevant factors" (54 NYJur2d Enforcement and Execution of Judgments § 164). Each case turns on its own particular facts. To obtain modification of an income execution, the debtor must show substantial hardship and an unfair burden in meeting obligations (see American Exp. Centurion v. Melia, 155 Misc. 2d 587 [NY Civ Ct 1992]; First Westchester Nat. Bank of New Rochelle v. Lewis, 42 Misc. 2d 1007 [NY County Ct 1964]; Midlantic Nat. Bank/North v. Reif, 732 [*2]F.Supp. 354 [EDNY 1990]).

In support of movant's application, movant avers that an order of the Family Court requires him to pay weekly child support in the sum of $326 and that he pays $116.10 per week for health and dental insurance. The movant asserts that there "isn't enough income" to have an additional 10% of his gross income garnished. In support of movant's application, he affixes a copy of an "Order modifying Order of Support" (dated November 20, 2002). Same reflects an obligation to pay $326 weekly for support of two children. The movant has not established what his financial requirements are, what his take-home pay is, or other relevant factors (i.e., how long said execution has been in effect; the amount of the judgment that has been satisfied). Absent a discussion of such factors and submission of proof of these factors, the Court cannot find that the current execution constitutes a "substantial hardship" and an "unfair burden" to movant. The Court must deny the motion. Movant, upon any future motion, made by way of order to show cause, shall be guided accordingly. Movant's application is, in all other respects, denied.

So Ordered:

DISTRICT COURT JUDGE

Dated:October 12, 2004

CC:Kenneth Berman, pro se

Kirschenbaum & Phillips, P.C.

SF/mp