Relates to service of income execution upon a 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.