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| Jobs Report Corruption Contact |
| New
York City Marshals Handbook of Regulations Effective Date: October 24, 1997 |
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| Jobs Report Corruption Contact |
| New
York City Marshals Handbook of Regulations Effective Date: October 24, 1997 |
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CHAPTER II |
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Levy and Sale is a manner of collecting a money judgment which gives the judgment debtor the option of paying the city marshal or having some of his personal property levied upon and sold at auction. Before a marshal may make a levy, he must obtain a property execution from the clerk of the court where the judgment was rendered or from the judgment creditor's attorney. A property execution is a mandate to the marshal to satisfy a money judgment out of the personal property of the judgment debtor and any debts due him. An execution may be issued only by the judgment creditor's attorney or by the clerk of the court in the county where the judgment was entered. A city marshal, therefore, is prohibited from issuing executions unless he is also an attorney. However, if a marshal acts as an attorney in a matter, the Committee on Professional Ethics of the Association of the Bar of the City of New York has ruled that it would be unethical for him to also act as the marshal with respect to the same matter. Marshals are enforcement officers of the New York City Civil Court, and executions issued by the Civil Court may be levied only against personal property of debtors. Therefore, marshals may not levy against real property. Moreover, a marshal's jurisdiction and authority to serve executions against property, as well as all other mandates and processes, extends through and is limited to the geographical boundaries of the City of New York. A marshal's authority to levy upon property is limited to executions issued pursuant to judgments of the New York City Civil Court. An execution must specify the date on which the judgment or order was entered, the court in which it was entered, the amount of the judgment or order and the amount due thereon and it shall specify the names of the parties in whose favor and against whom the judgment or order was entered. When seizing vehicles pursuant to property executions issued where the City is the judgment creditor, marshals shall use forms prescribed by the Department of Finance (DOF). Where voluntary payments or authorized collections have previously been made on the judgment, the statement on the execution of the amount due on the judgment must be reduced by the amount of such payments or collections. Furthermore, marshals are prohibited from using property executions to search out the assets of debtors. Section 2: PRIORITY OF EXECUTIONS When an execution is issued to a marshal, the date, hour, and minute of delivery must be recorded on it to protect the judgment creditor's rights against other executions. When two or more executions issued against the same judgment debtor are delivered to the same marshal, the executions must be satisfied out of the judgment debtor's property in the order in which the executions were delivered to the marshal. Where two or more executions issued against the same judgment debtor are delivered to different enforcement officers (different marshals or the sheriff and a marshal) and personal property levied upon is within the jurisdiction of all the officers, the enforcement officer who is first to levy will secure the priority. Thus, it is extremely important for all executions to be acted upon promptly. Section 3: NOTICE OF EXECUTION Once a valid execution has been issued to a marshal, a notice, commonly referred to as a "notice of execution," may be mailed to the judgment debtor. This type of notice merely informs a judgment debtor of the issuance of an execution against his property and warns him that, if he does not remit the monies due, certain of his assets are subject to levy and sale. This notice sometimes prevents the need for service of an execution and subsequent sale because the judgment debtor may be persuaded by the notice to remit the amount demanded. However, sending a "notice of execution" through the mail to the judgment debtor does not constitute a valid levy, and thus a marshal may not specify a sale date in the notice, nor may the notice purport to levy upon property whether or not described on the execution. An acceptable "notice of execution" form may be obtained from the Bureau of City Marshals. Any other dunning notice may not be used without prior written approval of the Department of Investigation. Note that a marshal is not required to send such a notice. It is optional. The Civil Practice Law and Rules (CPLR) does not provide for a fixed fee for mailing or delivering a notice of execution, and therefore marshals shall not charge such a fee for this service. If a marshal does not mail a "notice of execution," or if this has been done without any success, the next step (which may be done only by a marshal) is to effect a levy by serving a copy of the execution together with an inventory of the property levied upon. A levy is a seizure of property. It is the act of a marshal in taking property into his custody, physically or constructively, to satisfy a money judgment. There are two different types of personal property which may be levied upon: intangible and tangible. Return to top
Section 4-1: Intangibles If the property is "not capable of delivery," for example, a debt owed to the judgment debtor or money in a bank account, a levy is made by serving a copy of the execution on the garnishee (that is, the person who owes a debt to the judgment debtor or an officer of the bank where the debtor maintains an account). This type of execution is usually entitled "execution with notice to garnishee." An inventory is not taken when levying upon intangibles. With respect to property "not capable of delivery," a levy will be effective only if the person served owes a debt to the judgment debtor at the time of service or is in possession or custody of property "not capable of delivery" in which the judgment debtor has an interest at the time of service. Otherwise, the levy is ineffective, even though the person served thereafter acquires such property. Section 4-2: Tangibles If the property is "capable of delivery," a levy is made by physically or constructively seizing the property and immediately serving a copy of the execution, together with an inventory, upon the person from whose possession or custody the property was taken. The inventory must list in detail all property subject to the levy. With respect to this type of property, a marshal may take physical possession removing and storing it, or he may retain a custodian at the premises where the property is located to ensure that the property is not removed. However, a marshal may not put his own lock on the door of a debtor's business without the debtor's written consent. Where a physical seizure is made, the property must be properly identified, tagged, and stored in the marshal's office or in a warehouse under the marshal's own lock and key. To effect a valid levy on property "capable of delivery," a marshal may also merely assert "dominion and control" over the specific property levied upon. If this manner of levy is relied upon, as it commonly is, a marshal must be capable of physically removing the property in order to assert "dominion and control." A levy cannot be made through the front window of a locked store. Therefore, a valid levy may be made by:
Service of the execution is to be made in the same manner as the service of a summons. The execution must be served by one of the following methods:
If neither of the above methods is successful, then the person to be served may be served by affixing a copy of the execution to the door of either the actual place of business, dwelling place or usual place of abode within the City of New York of the person to be served and by either mailing a copy of the execution to such person at his or her last known residence or by mailing a copy of the execution by first class mail to the person to be served at his or her actual place of business, in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from a city marshal or concerns an action against the person to be served, such affixing and mailing to be effected within twenty (20) days of each other. "Actual place of business" is defined by CPLR §308(6) as any location that the defendant, through regular solicitation or advertisement, has held out as its place of business. The CPLR does not provide any guidelines as to the difference between property "capable of delivery" and property "not capable of delivery." However, in either case, a copy of the execution must be served. The CPLR does state that property or a debt evidenced by a negotiable instrument for the payment of money, a negotiable title, or a certificate of stock of an association or corporation, shall be treated as property capable of delivery. As noted in §4-2 of this chapter, when a marshal levies on property capable of delivery by seizing it, he must immediately serve a copy of the execution and a notice of levy form with an inventory upon the person from whose possession or custody the property was taken. Marshals must conduct themselves as befitting public officers in serving property executions. Therefore, marshals may not employ any device, threat, trick, or ruse to gain entrance into residences. Service on a corporation must be made according to the provisions of § 311 of the CPLR; that is, by personally serving (in-hand) an officer or other agent of the corporation. Under no circumstances may service be made by mailing a copy of the execution to the corporate garnishee. Where the execution does not state that a notice in the form prescribed by CPLR §5222(e) has been duly served upon the judgment debtor within the year, the marshal shall, not later than four days after service of the execution upon any garnishee, mail or deliver to the judgment debtor who is a natural person a copy of the execution together with the required notice. Marshals must follow the specific instructions contained in CPLR §5232(c) with respect to the information to be included and the procedures for mailing such notices. A person served with an execution is required to immediately transfer to the marshal all property of the judgment debtor in his possession or custody, pay the marshal all debts owed to the judgment debtor as they become due, and execute any documents necessary to effect transfer of payment to the marshal. In addition, except at the direction of the marshal or pursuant to a Court order, the debtor or garnishee is forbidden by law to sell, transfer, assign, or interfere with any property or to pay or dispose of any debt subject to the levy. This restraint is effective until the debtor or garnishee satisfies the judgment or transfers the property to the marshal or until the levy expires. If the person served with an execution fails or refuses to make delivery of property belonging to the judgment debtor, the judgment creditor or his attorney should be notified. With respect to intangible property and debts, a levy is effective for a period of ninety (90) days from the date of service of the execution. This means that the levy is effective as to all debts incurred by the garnishee and owed to the debtor within the ninety day period. Unless the court provides for further time upon motion of the judgment creditor, after ninety days, the levy is invalid except as to property or debts which have been transferred or paid to the marshal by the garnishee pursuant to the execution. Furthermore, once the garnishee transfers or pays to the marshal all of the property or all of the debts subject to the levy, the levy terminates and is not effective as to property thereafter coming into the garnishee's possession or custody in which the judgment debtor has an interest or any debts thereafter coming due to the judgment debtor. With respect to tangible property, a levy is valid for sixty (60) days from the issuance of the execution, but may be extended for an additional sixty day period by a written request from the judgment creditor's attorney. Further extensions may be granted by written authorization of the attorney for the judgment creditor, unless another execution against the same judgment debtor has been delivered to the same enforcement officer and has not been returned. CPLR §5021(b) provides that small claims executions must be returned to the court whether wholly or partially satisfied, or unsatisfied, within ninety days after the marshal receives the judgment, and that the clerk shall make an appropriate entry on his docket of the judgment. This provision does not differentiate between levies on property capable of delivery and those on property not capable of delivery. Section 7: SPECIFIC PROCEDURES Section 7-1: Particular Garnishees
Section 7-2: Dispossessed Tenants No levy may be made on the property of a tenant dispossessed for nonpayment of rent under any execution within twenty-four (24) hours of the time of dispossess, if the property of which the tenant is being dispossessed is his residence. This rule applies only to residences and, therefore, does not preclude a marshal from immediately levying upon property found in a commercial eviction. Section 7-3: Death of Judgment Debtor In the event of death of the judgment debtor, the judgment creditor or his attorney should be notified. CPLR §5208 contains specific restrictions on levying upon the property of a judgment debtor after his death. In most instances, leave of the Surrogate's Court that has jurisdiction over the estate is required. Marshals shall not attempt to levy upon a deceased judgment debtor's property until they have obtained specific permission from the court. Section 7-4: Protective Orders Section 5240 of the CPLR permits the court, on its own initiative or the motion of any interested person, to make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. If a city marshal is served with a protective order he must abide by the instructions contained therein. Section 7-5: Levy on Stock Certificates In order to levy on stock certificates, a marshal must physically seize the certificates and take possession over them. Section 7-6: Exempt Property Section 5205 of the CPLR exempts certain personal property from application to the satisfaction of money judgments, except where the judgment is for the purchase price of the exempt property. Pursuant to this section, a marshal may not levy on, among other things, the following:
Section 7-7: Notice to Debtors Case law requires a marshal (sheriff) to inform a debtor that certain monies and/or property may be exempt from seizure pursuant to an execution. If the execution does not state that a notice of execution has been served on the debtor, then a marshal must, no later than four days after service of the execution upon any garnishee, serve such a notice by:
When mailing, a certificate of mailing must be retained; when serving personally, a process server may be used. The notice shall contain the name and address of the judgment creditor or his attorney and, if mailed, shall be sent first to the debtor at his residence and then if returned as undeliverable, or if his address is unknown, to the debtor at his place of employment in a plain envelope (not indicating that the communication is from a marshal or concerns a debt), marked "personal and confidential." If no residence or business address is known, the notice shall be served and mailed to the debtor at any other known address. Section 7-8: Execution Against a Marshal Pursuant to §1503 of the New York City Civil Court Act, an execution against a marshal (or his sureties) may be issued only to the sheriff. Section 7-9: Levy on Partnerships A judgment debtor's interest in a "partnership" may not be the subject of a levy. A marshal may only levy on a partnership's assets when the partnership is specifically named as a party in the lawsuit. If it was not, then the creditor must get a "charging order" against the debtor-partner's interest in the partnership. Section 8: RETURN OF EXECUTION Marshals must make a prompt return of their executions to the clerk of the court that issued the execution, with an endorsement thereon of the action taken (e.g., satisfied, partially satisfied, unsatisfied, vacated). In addition, §5021(b) of the CPLR requires marshals, upon request, to provide the person making payment with a certified copy of the execution and of the return of satisfaction or partial satisfaction. The Courts, as a matter of practice, do not accept return of completely unsatisfied executions except in Small Claims matters. Section 5230(c) of the CPLR provides that the execution shall be returned to the court within sixty days after issuance unless the execution has been served in accordance with CPLR §5231 (income execution) or §5232(a) (levy upon personal property not capable of delivery). The sixty day period may be extended for an additional sixty days by written authorization of the attorney for the judgment creditor, and for additional sixty-day periods by such additional written authorizations unless another execution against the same judgment debtor has been delivered to the same enforcement officer and has not been returned. CPLR §5021(b) provides that small claims executions must be returned to the court whether wholly or partially satisfied, or unsatisfied, within ninety days after the marshal receives the judgment, and that the clerk shall make an appropriate entry on his docket of the judgment. Section 9-1: Executions An execution upon a small claims judgment may be issued by the judgment creditor's attorney or, if the judgment creditor does not appear by attorney, by the clerk of the court in the county where the judgment was entered. The combined property and income execution, which must be used for collecting judgments entered in the various small claims parts of the Civil Court may be obtained by requisitioning the execution from the clerk. The marshal may obtain the execution by submitting a written requisition to the clerk of the small claims part in the appropriate county. The requisition should contain the court's index number, the names of the parties to the claim, the date judgment was rendered, the date of the requisition, and the marshal's signature. The clerk will then examine the court's record of the judgment, prepare the execution, and issue it to the marshal. Moreover, Civil Court Directive 358, issued by the Administrative Judge of the Civil Court of New York City, requires all city marshals to return all unsatisfied executions, as well as all fully and partially satisfied executions, to the County Division of the Small Claims Part from which the execution was issued. Please note that this directive is applicable only to executions involving Small Claims matters and differs from §8 of this chapter. Section 9-2: Reporting All marshals must execute and enforce Small Claims judgments within the City of New York whenever such judgments are delivered to their offices. The Department of Investigation pursuant to Joint Administrative Order 490 assigns marshals to specified quarterly reporting periods for Small Claims activity. These assignments are given on a rotating basis.
Regardless of the quarterly activity, all marshals, as officers of the Civil Court, are required to act upon all Small Claims judgments brought to them for execution. All reports are to be filed with the Department of Investigation on the approved form, which may be obtained from the Bureau of City Marshals. Small Claims reports are to be received by the Department within thirty (30) days after the close of the quarter. In the event a marshal has received no Small Claims matters during the assigned quarter, the form still must be filed with the Department of Investigation in a timely manner and must reflect that there was no Small Claims activity. Section 10: LEVY ON MOTOR VEHICLES Section 10-1: Generally When seizing a motor vehicle pursuant to a property execution, a marshal must notify the local police precinct of his levy and seizure. Notification must be by police report, delivered to the local precinct within two hours after each levy and seizure is made. It is not proper for a marshal to notify the precinct at the end of the day's work or after the seizure of many vehicles. To ensure against the loss of personal property from seized vehicles and/or physical damage to the vehicles, a city marshal must complete an inventory of all items of personal property found in an automobile at the time of its seizure. Where applicable, the inventory should include the make, model, and serial number of the articles listed. The existence or lack of a radio, tape deck, or other special electronic equipment should also be noted. If no items of personal property are found in the vehicle, the inventory should reflect this fact. If any area within the seized vehicle can be accessed without a key (e.g. "poplock" trunk, glovebox, etc.) this area should be checked and inventoried as well. Locked car trunks that cannot be opened from within the car should not be opened. The condition of the exterior and interior of the auto must also be noted, with reference to possible physical damage to the vehicle. Where there is existing damage, it should be specified (e.g., dented right front fender, ripped seat). Section 10-2: Parking Violations Operations (PVO) Standard Operating Procedures City marshals who enforce judgments for the City of New York, Parking Violations Operations (PVO), must follow the Standard Operating Procedures (SOP) promulgated by the Department of Finance. Failure to comply with the SOP, or this Handbook, as applicable, may result in suspension or removal from the PVO program and disciplinary action against the marshal by the Department of Investigation. Section 10-3: PVO Fees When computing fees with respect to PVO executions (or any other executions) the amount must be based upon the number of executions received, regardless of the number of judgments that a particular execution may contain. Section 10-4: PVO Fee Waivers City marshals are permitted to waive advance fees for executions issued directly to them by PVO or the Transit Adjudication Bureau (TAB). When Parking Violations Operations issues a property execution on a seized vehicle, it reflects only those tickets that were entered into judgment as of that time. If, after the seizure, PVO discovers that additional tickets have been reduced to judgment on that particular car PVO may issue another execution to cover the additional tickets that have been entered into judgment. Since two executions are being issued, this could result in duplicate fees for the same seizure. Pursuant to §(3)(e) of Joint Administrative Order 453, marshals are now authorized to waive all statutory fees on the second or subsequent execution. They are authorized to do so but can choose to charge the full statutory fees on the second or subsequent execution for services actually performed. Poundage shall still be charged on all amounts collected on the judgment. If the marshal chooses to waive these fees, a new docket page should not be opened for the second or subsequent execution. Marshals shall indicate the following information on the original docket page in the area set aside for "Remarks:"
This authorization applies only to second or subsequent executions issued against a vehicle already in the marshal's custody. On additional executions against the same debtor for seizure of a vehicle not in the marshal's custody all appropriate fees should be charged and each new execution should be assigned a separate docket number. Section 10-5: Out-of-State Notice A city marshal is required to notify an out-of-state motor vehicle bureau of a PVO seizure not sooner than seventy-two (72), and not later than one-hundred-twenty (120) hours after such seizure. This notification by the marshal may be waived only if the registered owner of the vehicle appears in person and with proper identification prior to the expiration of the 120-hour period and redeems the vehicle, or the Department of Finance makes the required notification and inquiry to the out-of-state motor vehicle bureau on behalf of the marshal. Section 10-6: PVO Lawsuits Any marshal named as a defendant in a civil action arising out of a PVO judgment will be required to forward photocopies of all papers served upon him to:
This will help the City coordinate its involvement in litigation when it is, or may become, a party to a lawsuit. It should be noted, however, that the forwarding of such papers to the Office of the Corporation Counsel does not create any obligation on the part of the City to indemnify or defend the marshal. Note that this reporting requirement is in addition to the present requirements under Chapter X, §2-1 of the Handbook relating to each marshal's responsibility to notify the Department of Investigation of all pending litigation.
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