2012 New York Consolidated Laws
CVP - Civil Practice Law & Rules
Article 52 - (5201 - 5253) ENFORCEMENT OF MONEY JUDGMENTS
5222-A - Service of notices and forms and procedure for claim of exemption.

 
    §  5222-a.  Service  of  notices  and forms and procedure for claim of
  exemption.  (a) Applicability. Any person authorized  under  subdivision
  (a)  of  section  fifty-two hundred twenty-two of this article issuing a
  restraining notice affecting a natural person's  account  at  a  banking
  institution  pursuant to such subdivision must comply with this section,
  in addition to the general provisions set forth  in  such  section.  Any
  sheriff  levying  against  a  natural  person's  account  at  a  banking
  institution pursuant to section fifty-two  hundred  thirty-two  of  this
  article  must  comply  with  this  section,  in  addition to the general
  provisions set forth in section fifty-two  hundred  thirty-two  of  this
  article.  The  procedures  set forth in subdivisions (b), (c), (d), (e),
  (f)  and  (g)  of  this  section  shall  not  apply  where  pursuant  to
  subdivision  (h)  and/or  (i) of section fifty-two hundred twenty-two or
  subdivision (e) of section fifty-two hundred thirty-two of this article,
  no funds in the account are restrained or levied upon.
    (b) Service of exemption notice and exemption claim form.  1.  Service
  with restraining notice upon banking institution. The person issuing the
  restraining  notice  pursuant  to  subdivision  (a) of section fifty-two
  hundred twenty-two of this article shall provide the banking institution
  with the restraining notice,  a  copy  of  the  restraining  notice,  an
  exemption  notice  and  two  exemption  claim forms with sections titled
  "ADDRESS  A"  and  "ADDRESS  B"  completed.  The  exemption  notice  and
  exemption  claim forms shall be in the forms set forth in paragraph four
  of this subdivision. The notice and the forms shall  be  served  on  the
  banking institution together with the restraining notice and copy of the
  restraining  notice.  Service  must  be  accomplished in accordance with
  subdivision (a) or (g) of section fifty-two hundred twenty-two  of  this
  article.  Failure  to  serve  the  notice  and  forms  together with the
  restraining notice renders the restraining notice void, and the  banking
  institution shall not restrain the account.
    2.  Service of execution by levy upon a garnishee banking institution.
  When serving  an  execution  pursuant  to  subdivision  (a)  of  section
  fifty-two  hundred thirty-two of this article, the sheriff shall provide
  the banking institution with an exemption notice and two exemption claim
  forms, which shall be in the forms set forth in paragraph four  of  this
  subdivision.  The  sheriff shall serve both the exemption notice and the
  exemption claim forms on  the  banking  institution  together  with  the
  execution  notice.  Service  must  be  accomplished  in  accordance with
  subdivision (a) of section fifty-two hundred thirty-two of this article.
  Failure to serve the notice and forms renders the  execution  void,  and
  the banking institution shall not levy upon the account.
    3.  Service  upon  judgment  debtor.  Within  two  business days after
  receipt of the restraining notice or  execution,  exemption  notice  and
  exemption  claim  forms,  the  banking  institution shall serve upon the
  judgment debtor the copy of the restraining notice, the exemption notice
  and two exemption claim forms. The banking institution shall  serve  the
  notice  and  forms  by first class mail to the last known address of the
  judgment debtor. The inadvertent failure by a depository institution  to
  provide  the  notice required by this subdivision shall not give rise to
  liability on the part of the depository institution.
    4. Content of exemption  notice  and  exemption  claim  form.  a.  The
  exemption notice shall be in the following form:
 
                              "EXEMPTION NOTICE
                         as required by New York Law
 
                 YOUR BANK ACCOUNT IS RESTRAINED OR "FROZEN"

    The  attached  Restraining  Notice  or notice of Levy by Execution has
  been issued against your bank account. You  are  receiving  this  notice
  because a creditor has obtained a money judgment against you, and one or
  more  of  your  bank accounts has been restrained to pay the judgment. A
  money  judgment  is a court's decision that you owe money to a creditor.
  You should be aware that FUTURE DEPOSITS into your account(s) might also
  be restrained if you do not respond to this notice.
    You may be able to "vacate" (remove) the judgment. If the judgment  is
  vacated,  your  bank  account  will  be  released.  Consult  an attorney
  (including free legal services)  or  visit  the  court  clerk  for  more
  information about how to do this.
    Under  state  and  federal law, certain types of funds cannot be taken
  from your bank account to pay a judgment.  Such  money  is  said  to  be
  "exempt."
    DOES YOUR BANK ACCOUNT CONTAIN ANY OF THE FOLLOWING TYPES OF FUNDS?
    1. Social security;
    2. Social security disability (SSD);
    3. Supplemental security income (SSI);
    4. Public assistance (welfare);
    5. Income earned while receiving SSI or public assistance;
    6. Veterans benefits;
    7. Unemployment insurance;
    8. Payments from pensions and retirement accounts;
    9. Disability benefits;
    10. Income earned in the last 60 days (90% of which is exempt);
    11. Workers' compensation benefits;
    12. Child support;
    13. Spousal support or maintenance (alimony);
    14. Railroad retirement; and/or
    15. Black lung benefits.
    If  YES,  you can claim that your money is exempt and cannot be taken.
  To make the claim, you must
    (a) complete the EXEMPTION CLAIM FORM attached;
    (b) deliver or mail the form  to  the  bank  with  the  restrained  or
  "frozen" account; and
    (c)  deliver  or  mail the form to the creditor or its attorney at the
  address listed on the form.
    You must send the forms within 20 DAYS of the postmarked date  on  the
  envelope  holding  this  notice.  You  may  be  able to get your account
  released faster if you send to the  creditor  or  its  attorney  written
  proof  that your money is exempt. Proof can include an award letter from
  the government, an annual statement from your pension, pay stubs, copies
  of checks, bank records showing the last two months of account activity,
  or other papers showing that the money in your bank account  is  exempt.
  If you send the creditor's attorney proof that the money in your account
  is  exempt,  the attorney must release that money within seven days. You
  do not need an attorney to make an exemption claim using the form."
    b. The exemption claim form shall be in the following form:
 
  NAME OF COURT, NAME OF COUNTY
 
  -------------------------------------x
 
  PLAINTIFF/PETITIONER/CLAIMANT               INDEX NO.
  V.
  DEFENDANT/RESPONDENT                        EXEMPTION CLAIM FORM
 
  -------------------------------------x

  NAME AND ADDRESS OF JUDGMENT                NAME AND ADDRESS OF FINANCIAL
  CREDITOR OR ATTORNEY                        INSTITUTION
  (To be completed by judgment                (To be completed by judgment
  creditor or attorney)                       creditor or attorney)
  ADDRESS                                     ADDRESS
  A_____________________                      B______________________
    ____________________                        _____________________
  Directions:  To  claim that some or all of the funds in your account are
  exempt, complete both copies  of  this  form,  and  make  one  copy  for
  yourself.  Mail or deliver one form to ADDRESS A and one form to ADDRESS
  B within twenty days of the date on the envelope  holding  this  notice.
  **If  you  have  any  documents,  such  as  an  award  letter, an annual
  statement from your pension, paystubs, copies of checks or bank  records
  showing  the  last two months of account activity, include copies of the
  documents with this form. Your account may be released more quickly.
 
  _________________________________________________________________________
 
  I state that my account contains the following type(s) of  funds  (check
  all that apply):
 
  ____Social security
  ____Social security disability (SSD)
  ____Supplemental security income (SSI)
  ____Public assistance
  ____Wages while receiving SSI or public assistance
  ____Veterans benefits
  ____Unemployment insurance
  ____Payments from pensions and retirement accounts
  ____Income earned in the last 60 days (90% of which is exempt)
  ____Child support
  ____Spousal support or maintenance (alimony)
  ____Workers' compensation
  ____Railroad retirement or black lung benefits
  ____Other (describe exemption):_________________________________
 
  I  request  that  any correspondence to me regarding my claim be sent to
  the following address:
 
  _____________________________________________________________________
                       (FILL IN YOUR COMPLETE ADDRESS)
 
  I certify under penalty of perjury that the statement above is  true  to
  the best of my knowledge and belief.
 
  _________________________________________________________________________
  DATE                                  SIGNATURE OF JUDGMENT DEBTOR
 
    (c)  Claim  of  exemption.    1. To claim an exemption pursuant to the
  procedures in this section,  the  judgment  debtor  shall  complete  the
  exemption  claim  forms,  sign  them under penalty of perjury, and serve
  them within twenty days of the date  postmarked  on  the  correspondence
  containing  the  notice  and  forms. The judgment debtor shall serve one
  completed exemption claim form on the banking institution and the  other
  on the attorney for the judgment creditor. In the event that there is no
  attorney  for  the judgment creditor, then the exemption claim form must
  be served directly on the judgment creditor.  The  judgment  debtor  may
  serve the exemption claim forms in person or by first-class mail.

    2.  Where the banking institution receives an exemption claim form, it
  shall notify the judgment creditor forthwith of the date  on  which  the
  funds will be released pursuant to paragraph three of this subdivision.
    3.  The  banking  institution  shall release all funds in the judgment
  debtor's account eight days after the date postmarked  on  the  envelope
  containing  the  executed  exemption  claim  form  mailed to the banking
  institution or the date of personal delivery of the  executed  exemption
  claim form to the banking institution, and the restraint shall be deemed
  void,  except where the judgment creditor interposes an objection to the
  exemption within that time.
    4. Where the executed  exemption  claim  form  sent  to  the  judgment
  creditor  is  accompanied by information demonstrating that all funds in
  the account are exempt, the judgment creditor shall, within  seven  days
  of  the postmark on the envelope containing the exemption claim form and
  accompanying information, instruct the banking  institution  to  release
  the  account,  and the restraint shall be deemed void. Where the account
  contains some funds from exempt sources, and other  funds  from  unknown
  sources,  the  judgment  creditor  shall  apply  the lowest intermediate
  balance principle of accounting and, within seven days of  the  postmark
  on  the  envelope  containing  the exemption claim form and accompanying
  information, shall instruct  the  banking  institution  to  release  the
  exempt  money  in  the  account.  The  provisions  of  paragraph  two of
  subdivision (b) of rule twenty-one hundred three of this  chapter  shall
  not  enlarge  the  judgment  creditor's  time  to  move pursuant to this
  section. Information demonstrating that funds are exempt  includes,  but
  is not limited to, originals or copies of benefit award letters, checks,
  check  stubs  or  any  other  document  that discloses the source of the
  judgment debtor's income, and bank records showing the last  two  months
  of account activity. If the judgment creditor fails to act in accordance
  with  this  subdivision,  the  judgment creditor shall be deemed to have
  acted in bad faith and the judgment debtor may seek a court award of the
  damages, costs, fees and penalties provided for in  subdivision  (g)  of
  this section.
    5.  If  no  claim  of exemption is received by the banking institution
  within twenty-five days after the notice and forms  are  mailed  to  the
  judgment  debtor,  the funds remain subject to the restraining notice or
  execution. Failure of  the  judgment  debtor  to  deliver  the  executed
  exemption  claim  form  does  not constitute a waiver of any right to an
  exemption.
    (d) Objection to exemption claim and request for hearing.  A  judgment
  creditor  may  object  to  the claim of exemption by moving for an order
  pursuant to  section  fifty-two  hundred  forty  of  this  article.  The
  judgment  creditor  must  serve the banking institution and the judgment
  debtor  with  its  motion  papers  within  eight  days  after  the  date
  postmarked  on the envelope containing the executed exemption claim form
  or the date of personal delivery of the executed exemption claim form to
  the  banking  institution,  and  the  provisions  of  paragraph  one  of
  subdivision  (b)  of rule twenty-one hundred three of this chapter shall
  not enlarge the judgment  creditor's  time  to  move  pursuant  to  this
  section.  The judgment debtor shall be served at the address provided on
  the exemption claim form. The affirmation or affidavit in support of the
  motion shall demonstrate a reasonable belief that such judgment debtor's
  account contains funds that are not exempt from execution and the amount
  of such nonexempt funds. The executed  exemption  claim  form  shall  be
  attached  to  the affirmation or affidavit. The affirmation or affidavit
  shall not be conclusory, but is required to show the factual basis  upon
  which  the  reasonable belief is based. The hearing to decide the motion
  shall be noticed for seven days after service of the moving papers.  The

  executed  exemption  claim  form  shall  be prima facie evidence at such
  hearing that the funds in the account are exempt funds.  The  burden  of
  proof  shall  be  upon  the judgment creditor to establish the amount of
  funds  that  are  not  exempt.  The court shall, within five days of the
  hearing, issue an order stating whether or not funds in the account  are
  exempt and ordering the appropriate relief. The judgment creditor or its
  attorney  must  serve  the  order  on  the  banking  institution and the
  judgment debtor no later than two business days after the  court  issues
  the order.
    (e)  Duties  of  banking institution if objection is made to exemption
  claim. Upon receipt of a written objection pursuant to  subdivision  (d)
  of  this  section  from the judgment creditor or its attorney within the
  specified eight-day period, the banking  institution  shall  retain  the
  funds  claimed to be exempt for twenty-one days unless otherwise ordered
  by the court. If the period of twenty-one days expires and  the  banking
  institution  has  not  been  otherwise ordered by the court, the banking
  institution shall release the funds to the judgment debtor.
    (f) Release of funds. At any time during the  procedure  specified  in
  this  section,  the  judgment  debtor or the judgment creditor may, by a
  writing dated after the service of the restraining  notice,  direct  the
  banking institution to release the funds in question to the other party.
  Upon  receipt  of  a  release, the banking institution shall release the
  funds as directed.
    (g) Proceedings; bad faith claims. Where the judgment creditor objects
  to a claim of exemption pursuant to subdivision (d) of this section  and
  the  court  finds  that  the  judgment  creditor  disputed  the claim of
  exemption in bad faith, as provided in paragraph four of subdivision (c)
  of this section, the judgment debtor shall be awarded costs,  reasonable
  attorney  fees,  actual damages and an amount not to exceed one thousand
  dollars.
    (h) Rights of judgment debtor. Nothing in this section  shall  in  any
  way  restrict  the rights and remedies otherwise available to a judgment
  debtor, including but not limited  to,  rights  to  property  exemptions
  under federal and state law.
    (i)  The provisions 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.".