2012 New York Consolidated Laws
CVP - Civil Practice Law & Rules
Article 52 - (5201 - 5253) ENFORCEMENT OF MONEY JUDGMENTS
5241 - Income execution for support enforcement.

 
    §  5241. Income execution for support enforcement. (a) Definitions. As
  used in this section and in section fifty-two hundred forty-two of  this
  chapter, the following terms shall have the following meanings:
    1.  "Order  of  support" means any temporary or final order, judgment,
  agreement or stipulation incorporated by reference in such  judgment  or
  decree  in  a  matrimonial  action  or  family  court proceeding, or any
  foreign support  order,  judgment  or  decree,  registered  pursuant  to
  article  five-B  of  the  family  court act which directs the payment of
  alimony, maintenance, support or child support.
    2. "Debtor" means any person directed to make payments by an order  of
  support.
    3.  "Creditor"  means  any  person  entitled  to  enforce  an order of
  support, including a support collection unit.
    4. "Employer" means any employer, future  employer,  former  employer,
  union or employees' organization.
    5. "Income payor" includes:
    (i)  the  auditor,  comptroller,  trustee or disbursing officer of any
  pension fund, benefit program, policy of insurance or annuity;
    (ii) the state of New York or any political  subdivision  thereof,  or
  the United States; and
    (iii)  any  person,  corporation,  trustee, unincorporated business or
  association, partnership, financial institution, bank, savings and  loan
  association,  credit  union,  stock  purchase  plan,  stock option plan,
  profit sharing plan, stock broker, commodities broker, bond broker, real
  estate broker, insurance company, entity or institution.
    6. "Income" includes any  earned,  unearned,  taxable  or  non-taxable
  income,  benefits, or periodic or lump sum payment due to an individual,
  regardless of source, including wages, salaries,  commissions,  bonuses,
  workers'   compensation,  disability  benefits,  unemployment  insurance
  benefits, payments pursuant to a public or private pension or retirement
  program, federal social  security  benefits  as  defined  in  42  U.S.C.
  section  662(f)  (2),  and  interest,  but  excluding  public assistance
  benefits  paid  pursuant  to  the  social  services  law   and   federal
  supplemental security income.
    7.  "Default"  means  the  failure  of a debtor to remit to a creditor
  three payments on the date due in the full amount directed by the  order
  of  support, or the accumulation of arrears equal to or greater than the
  amount directed to be paid for one month, whichever first occurs.
    8. "Mistake of fact" means an error in the amount of  current  support
  or arrears or in the identity of the debtor or that the order of support
  does not exist or has been vacated.
    9.  "Support  collection  unit"  means  any  support  collection  unit
  established by a social services district pursuant to the provisions  of
  section one hundred eleven-h of the social services law.
    10.  "Date  of  withholding"  means the date on which the income would
  otherwise have been paid or made available to the  debtor  were  it  not
  withheld by the employer or income payor.
    11. "Health insurance benefits" means any medical, dental, optical and
  prescription  drugs  and  health  care  services  or  other  health care
  benefits which may be provided for dependents  through  an  employer  or
  organization,  including  such  employers  or  organizations  which  are
  self-insured.
    12. "Business day" means a day on which state  offices  are  open  for
  regular business.
    (b)  Issuance.  (1)  When  a  debtor  is  in default, an execution for
  support enforcement may be issued by the support collection unit, or  by
  the  sheriff,  the clerk of court or the attorney for the creditor as an
  officer of the court. Where  a  debtor  is  receiving  or  will  receive

  income,  an  execution for deductions therefrom in amounts not to exceed
  the limits set forth in subdivision (g) of this section  may  be  served
  upon  an employer or income payor after notice to the debtor. The amount
  of  the  deductions  to  be  withheld  shall  be  sufficient  to  ensure
  compliance with the direction in the order of support, and shall include
  an additional amount to be applied to  the  reduction  of  arrears.  The
  creditor  may  amend  the  execution  before  or  after service upon the
  employer or income payor to reflect additional arrears or payments  made
  by  the debtor after notice pursuant to subdivision (d) of this section,
  or to conform the execution to the facts found upon a determination made
  pursuant to subdivision (e) of this section.
    (2) (i) Where the court orders the debtor to provide health  insurance
  benefits  for  specified  dependents,  an  execution for medical support
  enforcement may, except as provided for herein, be issued by the support
  collection unit, or by the sheriff, the clerk of court or  the  attorney
  for  the  creditor  as  an officer of the court; provided, however, that
  when the court issues an order of child support or  combined  child  and
  spousal  support  on  behalf  of  persons other than those in receipt of
  public assistance or in receipt of  services  pursuant  to  section  one
  hundred  eleven-g  of  the  social  services law, such medical execution
  shall be in the form of a separate qualified medical child support order
  as provided by subdivision (j) of section four hundred  sixteen  of  the
  family  court  act  and  paragraph (h) of subdivision one of section two
  hundred forty of the domestic relations law. Such execution for  medical
  support  enforcement  may require the debtor's employer, organization or
  group health plan administrator to purchase on behalf of the debtor  and
  the  debtor's  dependents such available health insurance benefits. Such
  execution shall direct the employer, organization or group  health  plan
  administrator  to  provide  to the dependents for whom such benefits are
  required to be provided or such dependents' custodial  parent  or  legal
  guardian  or  social services district on behalf of persons applying for
  or in receipt of public assistance any identification cards and  benefit
  claim  forms  and  to  withhold  from the debtor's income the employee's
  share of the cost of such health  insurance  benefits,  and  to  provide
  written  confirmation  of  such  enrollment  indicating  the  date  such
  benefits were  or  become  available  or  that  such  benefits  are  not
  available  and  the  reasons therefor to the issuer of the execution. An
  execution for medical support enforcement shall not require  a  debtor's
  employer, organization or group health plan administrator to purchase or
  otherwise  acquire  health  insurance  or health insurance benefits that
  would not otherwise be available to the debtor by reason of his  or  her
  employment  or membership. Nothing herein shall be deemed to obligate or
  otherwise  hold  any  employer,  organization  or  group   health   plan
  administrator  responsible  for  an  option  exercised  by the debtor in
  selecting medical insurance coverage by an employee or member.
    (ii) Where the child support order  requires  the  debtor  to  provide
  health insurance benefits for specified dependents, and where the debtor
  provides such coverage and then changes employment, and the new employer
  provides  health care coverage, an amended execution for medical support
  enforcement may be issued by the support  collection  unit,  or  by  the
  sheriff,  the  clerk of the court or the attorney for the creditor as an
  officer of the court without any return to court. The  issuance  of  the
  amended execution shall transfer notice of the requirements of the order
  and the execution to the new employer, organization or group health plan
  administrator,  and shall have the same effect as the original execution
  for medical support issued pursuant to this section  unless  the  debtor
  contests the execution.

    (3)   Any   inconsistent   provisions  of  this  title  or  other  law
  notwithstanding, in any case in which a parent is required  by  a  court
  order  to provide health coverage for a child and the parent is eligible
  for health insurance benefits as defined  in  this  section  through  an
  employer  or organization, including those which are self-insured, doing
  business in the state, such employer or organization must,  in  addition
  to implementing the provisions of a medical support execution:
    (i)  permit  such  parent  to  immediately  enroll  under  such health
  insurance benefit coverage any such dependent who is otherwise  eligible
  for   such   coverage   without   regard   to  any  seasonal  enrollment
  restrictions;
    (ii) if such a parent is enrolled but fails  to  make  application  to
  obtain  coverage  of  such  dependent  child,  immediately  enroll  such
  dependent child under such health benefit coverage upon  application  by
  such  child's  other parent or by the office of temporary and disability
  assistance or social services district furnishing medical assistance  to
  such child, and
    (iii)  not  disenroll,  or eliminate coverage of, such a child unless:
  (A) the employer or organization is provided with  satisfactory  written
  evidence  that  such court order is no longer in effect, or the child is
  or will be  enrolled  in  comparable  health  coverage  through  another
  insurer which will take effect not later than the effective date of such
  disenrollment, or
    (B)  such  employer  or  organization  has eliminated health insurance
  coverage for all similarly situated employees.
    (c) Execution for support enforcement; form. (1) The income  execution
  shall  contain the caption of the order of support, and specify the date
  that the order of support  was  entered,  the  court  in  which  it  was
  entered,  the  amount  of  the periodic payments directed, the amount of
  arrears, the nature of the default and  the  names  of  the  debtor  and
  creditor. In addition, the income execution shall include:
    (i) the name and address of the employer or income payor from whom the
  debtor is receiving or will receive income;
    (ii)  the  amount of the deductions to be made therefrom on account of
  current support, and the amount  to  be  applied  to  the  reduction  of
  arrears;
    (iii)  a  notice  that deductions will apply to current and subsequent
  income;
    (iv) a notice that the  income  execution  will  be  served  upon  any
  current  or subsequent employer or income payor unless a mistake of fact
  is shown within fifteen days, a notice of the manner in which a  mistake
  of  fact  may  be  asserted,  and  a notice that, if the debtor claims a
  mistake of fact, a determination will be  made  within  forty-five  days
  after  notice  to  the  debtor  as  provided  in subdivision (d) of this
  section, and that the debtor will receive  written  notice  whether  the
  income  execution  will  be  served and of the time that deductions will
  begin;
    (v)  a  notice  that  the  employer  or  income  payor  must  commence
  deductions no later than the first pay period that occurs after fourteen
  days following the service of the income execution and that payment must
  be remitted within seven business days of the date that the debtor paid;
    (vi)  a  notice  that  the  income  execution is binding until further
  notice;
    (vii) a notice of the substance of the provisions of section fifty-two
  hundred fifty-two of this  chapter  and  that  a  violation  thereof  is
  punishable as a contempt of court by fine or imprisonment or both;
    (viii)  a  notice  of  the  limitations upon deductions from wages set
  forth in subdivision (g) of this section;

    (ix) a notice that an employer must notify the  issuer  promptly  when
  the  debtor  terminates employment and provide the debtor's last address
  and the name and address of the new employer, if known;
    (x)  a  notice  that  when  an employer receives an income withholding
  instrument issued by another state, the employer shall apply the  income
  withholding  law  of  the  state  of  the  debtor's  principal  place of
  employment in determining:
    (A) the employer's fee for processing income withholding;
    (B) the maximum amount permitted to  be  withheld  from  the  debtor's
  income;
    (C)  the  time  periods  within  which the employer must implement the
  income withholding and forward the child support payment;
    (D) the priorities for withholding and allocating income withheld  for
  multiple child support creditors; and
    (E)   any  withholding  terms  or  conditions  not  specified  in  the
  withholding instrument; and
    (xi) a notice that an employer who complies with an income withholding
  notice that is regular on  its  face  shall  not  be  subject  to  civil
  liability to any individual or agency for conduct in compliance with the
  notice.
    (2)  The  medical  support  execution shall contain the caption of the
  order of support and specify the date that  the  order  of  support  was
  entered  and  the  court  in  which it was entered. Such execution shall
  include the name and address of the employer or organization  and  shall
  include:
    (i)  a  notice that the debtor has been ordered by the court to enroll
  the dependents  in  any  available  health  insurance  benefits  and  to
  maintain  such  coverage  for  such  dependents as long as such benefits
  remain available;
    (ii) a notice inquiring of the employer or organization as to  whether
  such  health insurance benefits are presently in effect for the eligible
  dependents named in the execution, the date such benefits were or become
  available, or that such benefits  are  not  available  and  the  reasons
  therefor  and directing that the response to such inquiry immediately be
  forwarded to the issuer of such execution;
    (iii) a statement directing the employer or organization  to  purchase
  on  behalf  of  the debtor any available health insurance benefits to be
  made available to the debtor's dependents as directed by the  execution,
  including  the  enrollment  of  such eligible dependents in such benefit
  plans and the provision to the dependents or such dependents'  custodial
  parent  or  legal  guardian  or  social  services  district on behalf of
  persons  applying  for  or  in  receipt  of  public  assistance  of  any
  identification cards and benefit claim forms;
    (iv) a statement directing the employer or organization to deduct from
  the  debtor's  income  such  amount  which  is the debtor's share of the
  premium, if any, for such health insurance benefits for such  dependents
  who  are  otherwise  eligible  for  such  coverage without regard to any
  seasonal enrollment restrictions;
    (v) a notice  that  the  debtor's  employer  must  notify  the  issuer
  promptly  at  any  time  the  debtor  terminates  or changes such health
  insurance benefits;
    (vi) a statement that the debtor's employer or organization shall  not
  be  required to purchase or otherwise acquire health insurance or health
  insurance benefits for such  dependents  that  would  not  otherwise  be
  available to the debtor by reason of his employment or membership;
    (vii)  a  statement  that failure to enroll the eligible dependents in
  such health insurance plan or benefits or failure  to  deduct  from  the
  debtor's  income  the  debtor's  share  of  the premium for such plan or

  benefits shall make such employer or organization jointly and  severally
  liable  for  all medical expenses incurred on the behalf of the debtor's
  dependents named in the execution  while  such  dependents  are  not  so
  enrolled to the extent of the health insurance benefits that should have
  been provided under the execution;
    (viii)  the  name and last known mailing address of the debtor and the
  name and mailing address of the dependents; provided however,  that  the
  name   and  mailing  address  of  a  social  services  official  may  be
  substituted on behalf of such dependents;
    (ix) a reasonable description of the type of coverage to  be  provided
  to each dependent, or the manner in which such type of coverage is to be
  determined;
    (x) the period to which such execution applies; and
    (xi)  a statement that the debtor's employer or organization shall not
  be required to provide any  type  or  form  of  benefit  or  option  not
  otherwise  provided  under  the  group  health plan except to the extent
  necessary to meet the requirements of a law relating  to  medical  child
  support  described  in section one thousand three hundred ninety-six-g-1
  of title forty-two of the United States Code.
    (d) Notice to debtor. The creditor shall serve a copy of the execution
  upon the debtor by  regular  mail  to  the  debtor  at  his  last  known
  residence  or  such other place where he is likely to receive notice, or
  in the same manner as a summons may be served.
    (e) Determination of mistake of fact. Where  the  execution  has  been
  issued  by  the support collection unit, the debtor may assert a mistake
  of fact and shall have an opportunity to make a submission in support of
  the objection within fifteen  days  from  service  of  a  copy  thereof.
  Thereafter,  the agency shall determine the merits of the objection, and
  shall notify the debtor of  its  determination  within  forty-five  days
  after  notice  to  the  debtor  as  provided  in subdivision (d) of this
  section. If the objection is disallowed, the debtor  shall  be  notified
  that  the  income  execution  will  be  served on the employer or income
  payor, and of the time that deductions  will  begin.  Where  the  income
  execution  has been issued by an attorney as officer of the court, or by
  the sheriff, or by the clerk of the  court,  the  debtor  may  assert  a
  mistake  of  fact  within fifteen days from service of a copy thereof by
  application  to  the  supreme  court  or  to  the  family  court  having
  jurisdiction  in  accordance  with section four hundred sixty-one of the
  family court act. If application is  made  to  the  family  court,  such
  application  shall be by petition on notice to the creditor and it shall
  be heard and determined in accordance with  the  provisions  of  section
  four  hundred  thirty-nine  of the family court act, and a determination
  thereof shall be made, and the debtor notified thereof within forty-five
  days of the application. If application is made  to  the  supreme  court
  such  application shall be by order to show cause or motion on notice to
  the creditor in the action in which the order or judgement sought to  be
  enforced  was entered and a determination thereof shall be made, and the
  debtor notified thereof within forty-five days of the application.
    (f) Levy. If a debtor fails to show mistake  of  fact  within  fifteen
  days,  or  after  a  determination  pursuant  to subdivision (e) of this
  section has been made, or  if  the  creditor  is  unable  to  serve  the
  execution  upon  the  debtor, the creditor may levy upon the income that
  the debtor is receiving or will receive by serving  the  execution  upon
  the  employer or income payor personally in the same manner as a summons
  or by regular mail, 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.

    (g) Deduction from income. (1) An employer or income payor served with
  an income  execution  shall  commence  deductions  from  income  due  or
  thereafter  due  to  the  debtor no later than the first pay period that
  occurs fourteen days after service of the  execution,  and  shall  remit
  payments to the creditor within seven business days of the date that the
  debtor  is  paid.  Each  payment remitted by an employer or income payor
  shall include, in addition to the identity and social security number of
  the debtor, the date and amount of  each  withholding  of  the  debtor's
  income  included in the payment. If the money due to the debtor consists
  of  salary  or  wages  and  his  or  her  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. An employer must notify the issuer promptly
  when  the  debtor  terminates  employment  and provide the debtor's last
  address and name and address of the new employer, if  known.  Where  the
  income  is  compensation  paid  or  payable  to  the debtor for personal
  services, the amount of the deductions to be withheld shall  not  exceed
  the following:
    (i) Where a debtor is currently supporting a spouse or dependent child
  other  than  the  creditor,  the amount of the deductions to be withheld
  shall not exceed fifty percent of the earnings of the  debtor  remaining
  after  the  deduction  therefrom  of  any  amounts required by law to be
  withheld ("disposable earnings"),  except  that  if  any  part  of  such
  deduction  is to be applied to the reduction of arrears which shall have
  accrued more than twelve weeks prior to the beginning of  the  week  for
  which  such earnings are payable, the amount of such deduction shall not
  exceed fifty-five percent of disposable earnings.
    (ii) Where a debtor is not currently supporting a spouse or  dependent
  child  other  than  the  creditor,  the  amount  of the deductions to be
  withheld shall not exceed sixty percent of the earnings  of  the  debtor
  remaining  after  the deduction therefrom of any amounts required by law
  to be withheld ("disposable earnings"), except that if any part of  such
  deduction  is to be applied to the reduction of arrears which shall have
  accrued more than twelve weeks prior to the beginning of  the  week  for
  which  such earnings are payable, the amount of such deduction shall not
  exceed sixty-five percent of disposable earnings.
    (2) (A) An employer or income payor served with an income execution in
  accordance with paragraph one of this subdivision shall be liable to the
  creditor for failure to deduct the amounts specified. The  creditor  may
  commence  a  proceeding against the employer or income payor for accrued
  deductions, together with interest and reasonable attorney's fees.
    (B) An employer or income payor served with  an  income  execution  in
  accordance with paragraph one of this subdivision shall be liable to the
  creditor and the debtor for failure to remit any amounts which have been
  deducted  as directed by the income execution. Either party may commence
  a  proceeding  against  the  employer  or  income  payor   for   accrued
  deductions, together with interest and reasonable attorney's fees.
    (C)  The  actions  of  the  employer  or  income payor in deducting or
  failing to deduct amounts specified by an  income  execution  shall  not
  relieve the debtor of the underlying obligation of support.
    (D)  In  addition  to  the  remedies  herein  provided  and  as may be
  otherwise authorized by law, upon a finding by the family court that the
  employer or income  payor  failed  to  deduct  or  remit  deductions  as
  directed  in the income execution, the court shall issue to the employer
  or income payor an order directing compliance and may direct the payment
  of a civil penalty not to exceed five  hundred  dollars  for  the  first
  instance  and  one  thousand  dollars  per  instance  for the second and

  subsequent instances of employer  or  income  payor  noncompliance.  The
  penalty  shall  be  paid to the creditor and may be enforced in the same
  manner as a civil judgment or in any other manner permitted by law.
    (3) If an employer, organization or group health plan administrator is
  served with an execution for medical support enforcement, such employer,
  organization  or  group health plan administrator shall: (i) purchase on
  behalf of the debtor any health insurance benefits  which  may  be  made
  available  to  the  debtor's  dependents  as  ordered  by the execution,
  including the immediate enrollment of such eligible dependents  in  such
  benefit  plans;  (ii)  provide the dependents for whom such benefits are
  required, or a social services official substituted for such dependents,
  identification cards and benefit claim forms; (iii) commence  deductions
  from  income due or thereafter due to the debtor of such amount which is
  the debtor's share of the premium, if any,  for  such  health  insurance
  benefits,  provided,  however,  that  such  deduction when combined with
  deductions for support does not exceed  the  limitations  set  forth  in
  paragraph  one  of  this subdivision and is consistent with the priority
  provisions set forth in  subdivision  (h)  of  this  section;  and  (iv)
  provide  a  confirmation  of  such  enrollment  indicating the date such
  benefits were  or  become  available  or  that  such  benefits  are  not
  available  and  the  reasons  therefor  to  the issuer of the execution.
  Except as otherwise provided by law, nothing herein shall be  deemed  to
  obligate  an  employer  or  organization  to  maintain  or  continue  an
  employee's or member's health insurance benefits.
    (4) If such employer, organization or group health plan  administrator
  shall  fail  to so enroll such eligible dependents or to deduct from the
  debtor's income the  debtor's  share  of  the  premium,  such  employer,
  organization  or  group  health  plan administrator shall be jointly and
  severally liable for all medical expenses  incurred  on  behalf  of  the
  debtor's dependents named in the execution while such dependents are not
  so  enrolled  to  the  extent of the insurance benefits that should have
  been provided under such execution. Except as otherwise provided by law,
  nothing herein shall be deemed to obligate an employer, organization  or
  group health plan administrator to maintain or continue an employee's or
  member's health insurance benefits.
    (h)  Priority.  A levy pursuant to this section or an income deduction
  order pursuant to section 5242 of this chapter shall take priority  over
  any other assignment, levy or process. If an employer or income payor is
  served with more than one execution pursuant to this section, or with an
  execution pursuant to this section and also an order pursuant to section
  5242 of this chapter, and if the combined total amount of the deductions
  to  be  withheld exceeds the limits set forth in subdivision (g) of this
  section, the employer or income payor shall withhold the maximum  amount
  permitted thereby and pay to each creditor that proportion thereof which
  such  creditor's  claim  bears  to  the  combined  total. Any additional
  deduction authorized by subdivision (g) of this section to be applied to
  the reduction of arrears shall be applied to such arrears in  proportion
  to  the  amount  of  arrears due to each creditor. Deductions to satisfy
  current support obligations shall have priority over deductions for  the
  debtor's  share  of  health insurance premiums which shall have priority
  over any additional deduction authorized  by  subdivision  (g)  of  this
  section.
    (i)  Levy  upon  money payable by the state. 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 execution upon the state  department
  of audit and control at its office in Albany. Service at the office of a
  department  or  any  agency or institution of the state in Albany may be
  made by registered or certified mail, return receipt requested.