BILL NUMBER:S5110

TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to
income execution service and levy upon default or failure to serve
judgment debtor

PURPOSE:

To clarify and modernize the process of income execution service and
levy upon default or failure to serve judgment debtor

SUMMARY OF PROVISIONS:

Section 1 of the bill amends subdivisions a, d, e, and j of section
5231 of the civil practice law and rules to clarify the process of
income execution service on judgment debtors by designating the
initial service upon a judgment debtor residing within New York as
"first service". CPLR 5231 (d). In case of default by the resident
judgment debtor or failure to serve such resident judgment debtor, the
subsequent service levying upon the money that such resident judgment
debtor is receiving or will receive is designated "second service".
CPLR 5231(e). Section 1 of the bill also clarifies that second service
shall be made upon a person or entity from whom the resident judgment
debtor is receiving or will receive money. This change more closely
              

tracks the language in current CPLR 5231(b), which permits the
issuance of an income execution "(w)here a judgment debtor is
receiving or will receive money from any source," and not simply from
a "person" (emphasis added)

Subdivisions e and j of section 5231 of the civil practice law and
rules are amended in Section 1 of the bill to allow for second service
of an income execution upon the person or entity from whom the
judgment debtor is receiving or will receive money in any county in
which the person or entity has an office or place of business.

Section 1 further amends subdivisions a, d, e, and j of section 5231
of the civil practice law and rules for consistency and for the
inclusion of gender neutral language.

Section 2 of the bill provides for an immediate effective date.

EXISTING LAW:

Section 5231 of the civil practice law and rules (CPLR) currently
allows for the initial service of resident judgment debtors in the
county in which they reside. See CPLR 5231(b), 5231(d). In the event
of default. by such resident judgment debtor or failure to serve such
resident judgment debtor, the sheriff or authorized enforcement
officer shall serve personally within the county the person from whom
such debtor is receiving or will receive money. See CPLR 5231(e).

At present, the statute additionally mandates that service upon a
nonresident judgment debtor be made by serving the debtor's New York
employer in the county the non-resident judgment debtor works See CPLR


5231(b).  The process of income execution service upon a non-resident
debtor would be unchanged by this legislation.

JUSTIFICATION:

The statutory provisions governing the steps to perform an income
execution in CPLR 5231, most of which have been on the books for over
half a century, are in need of clarification and modernization given
current business practices and the overall intent underlying this law.
Specifically, this bill would keep intact the New York resident
judgment debtor's ability to satisfy his or her obligation and
directly pay installments outlined in the income execution. This is
accomplished by "first service" of the income execution on the
judgment debtor by the sheriff or other authorized enforcement
officer. In the event such judgment debtor does not fulfill this
obligation within the twenty days prescribed under CPLR 5231(e), or
the sheriff is unable to serve the income execution on the judgment
debtor, "second service" should be allowed by the enforcement officer
upon a person or entity from whom the judgment debtor is receiving or
will receive money at any office or place of business of that person
or entity.

This second service provision will not prejudice the judgment debtor
who has forfeited the chance to personally satisfy the installments
due pursuant to the income execution by not complying with first
service under. CPLR 5231(d), Once second service has been authorized
by CPLR 5231(e), it is now the person or entity who owes money to the
judgment debtor, and not the judgment debtor, that must be served. It
should not matter if that person or entity is served where the
judgment debtor lives or works, as long as service is made on that
person or entity under the methods prescribed by CPLR 5231(e). In
fact, many employers actually require that income executions be
forwarded to a central office regardless of where the judgment debtor
is employed. Therefore, this legislation would allow the enforcement
officer to make second service, for example, at any of the offices of
the debtor's employer notwithstanding where the debtor is actually
employed.

This legislation would not circumvent one of the central goals of CPLR
5231, which is to afford the judgment debtor the option to pay the
installments due pursuant to the income execution without his or her
employer being made aware of the debt. Rather, these amendments would
ensure that once this option has not been exercised by the judgment
debtor, there is a clean and efficient path for second service of an
income execution on the person or entity who owes money to the
judgment debtor.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

Immediate.