Section 1: GENERALLY
An income execution (also known as a garnishment) is another manner of collecting a money judgment. When a money judgment is rendered in favor of one party and the judgment debtor fails to pay voluntarily, the judgment creditor may enforce his or her judgment with an income execution against a source of the debtor's income. This manner of judgment collection in effect gives the judgment debtor the choice of paying the city marshal directly or having a portion of some income (usually salary) deducted and remitted to the marshal.
A marshal's authority to levy upon property is no longer limited to executions issued pursuant to judgments of the New York City Civil Court. Current legislation has extended the power of marshals to enforce money judgments rendered by any Family Court or entered in any Supreme Court or docketed with the clerk of any county.
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Section 2: CONTENTS OF AN INCOME EXECUTION
Only an attorney for the judgment creditor as officer of the court or the clerk of the court in the county where the judgment was first docketed may issue an income execution. A properly completed income execution will contain the following:
- the requirements of CPLR § 5230(a) (see below);
- the name and address of the person from whom the judgment debtor is receiving or will receive money;
- the amount of money;
- the frequency of its payment;
- the amount of the installments to be collected;
- a notice to the defendant that if he does not commence paying immediately, the person from whom he is receiving income will be served
- a statement in the form provided by CPLR § 5231(g).
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Section 3: INCOME SUBJECT TO COLLECTION
An income execution is effective against the earnings of a judgment debtor defined as: compensation paid or payable for personal services, including wages, salary, commission, bonuses, and periodic payments of a pension or retirement program, and disposable earnings, defined as that part of the earnings of any individual remaining after the deduction from those earnings of any amount required by law to be withheld.
CPLR § 5205(d) provides that income from certain sources is exempt from garnishment to satisfy a money judgment except as specifically ordered by a court. Payments made to a judgment debtor from certain individual retirements accounts (IRA), or part of a Keogh (HR-10), retirement, or other qualified plan of the kind specified in CPLR § 5205(c)(2) are exempt. Marshals are advised to consult these sections carefully before attempting to levy on income from trusts, custodial accounts, annuities, insurance contracts, monies, assets, or interests that may have been established as part of such a plan.
An income execution may direct that installments from a judgment debtor's income of not more than 10% of the income be withheld and paid to the marshal, but no amount may be withheld for any week unless the judgment debtor's disposable earnings for that week exceed thirty (30) times the federal or state minimum hourly wage, whichever is greater, in effect at the time the earnings are payable.
Further, the amount withheld from the judgment debtor's earnings for any week may not exceed the lesser of 25% of the judgment debtor's disposable earnings for that week or the amount by which the disposable earnings of the judgment debtor for that week exceed thirty (30) times the federal or state minimum hourly wage, whichever is greater, in effect at the time the earnings are payable. Where the earnings of the judgment debtor are also subject to deduction for alimony, support or maintenance for family members pursuant to CPLR § 5241 or § 5242, the amount withheld pursuant to the income execution may not exceed the amount by which 25% of the disposable earnings of the judgment debtor for that week exceeds the amount deducted from the judgment debtor's earnings, in accordance with CPLR § 5241 and § 5242.
Please refer to the following chart and CPLR § 5231 to determine the proper amount to withhold in an income execution:
Where Disposable Income is:
Amount to Deduct:
30 times federal minimum wage or less
More than 30 times and less than 40 times federal minimum wage
The lesser of the excess of 30 times the federal minimum wage in disposable earnings or 10% of gross earnings
40 times the federal minimum wage or more
The lesser of 25% of disposable earnings or 10% of gross earnings
A judgment creditor or debtor may move the civil court for an order modifying an income execution.
It should also be noted that all the earnings of a judgment debtor who is receiving public assistance are exempt from income execution and levy, as are the public assistance payments themselves.
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Section 4: SERVICE AND RETURN
In serving an income execution and collecting the money, a marshal must follow the procedures set forth in CPLR § 5231. First, within twenty days of a marshal's receipt of an income execution, he or she must serve a copy of it on the judgment debtor. Service is accomplished in the same manner as the service of a summons, either by delivering the execution to the judgment debtor directly, or delivering it to a person of suitable age and discretion at the debtor's place of business or residence together with mailing a copy within twenty days to the debtor at his or her residence or place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. If neither of these methods of service can be effected, conspicuous service may be used. This is done by affixing a copy of the income execution to the door of the judgment debtor's residence or place of business and within twenty days mailing a copy to the debtor at his or her residence or place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served.
As an alternative to personal service, CPLR § 5231(d) permits the service of an income execution by certified mail. A marshal may therefore serve an income execution on a judgment debtor by certified mail, return receipt requested, provided that an additional copy of the income execution is sent by regular mail to the debtor. If a marshal elects to serve by mail, the marshal must retain the certified mail receipt in addition to the post office certificate of mailing for the regular mail as proof of service. A mileage fee may not be charged for service by mail.
Service on the judgment debtor is known as the “first stage.” If the judgment debtor remits monies after service of the income execution, then a marshal need serve no further papers. However, if the debtor fails to begin remitting the amount described above in § 3 within twenty days of service or fails to meet his or her scheduled payments, then the marshal may turn to the employer. This is known as the “second stage” of an income execution. This must be done by serving on the employer a copy of the execution, endorsed to show what monies have been received, if any. Again, it may be served in the same manner as a summons or, in the alternative, by certified mail, return receipt requested. These receipts must be retained by the marshal. If a marshal decides to serve the employer by personal delivery, he or she should serve an officer of the company or corporation or anyone in a position of authority. A marshal may not retain the services of a licensed process server for this purpose.
Once properly served, the employer must pay to the marshal the proper amount, not to exceed the amount described in § 3, above. If the employer fails to do so, the judgment creditor or his or her attorney should be informed, and the creditor or attorney may commence a turnover proceeding to compel the employer to comply with the execution. Income executions must be returned when wholly or partially satisfied, and those issued in Small Claims matters must be returned even if unsatisfied. For further information, see Chapter II, § 8 of this Handbook.
A city marshal’s authority extends only to the five boroughs of the City. Therefore, if the judgment debtor is employed within the City limits but resides in New York State, outside the City limits, the income execution should be delivered in the first instance to the sheriff or enforcement officer with jurisdiction in the county where the debtor resides. If that sheriff or enforcement officer is unable to serve the debtor within twenty days, or if the debtor fails to begin remitting the required amount within twenty days of service, and the sheriff or enforcement officer returns the execution unsatisfied in whole or in part because he or she is unable to serve the debtor’s employer, a city marshal, under CPLR § 5231(j), may serve the second stage on the debtor’s employer within the City limits.The income execution will retain its priority based on the date of delivery to the first enforcement officer so long as it is delivered to the marshal within twenty days after its return. Where service of second stage of the income execution is authorized under CPLR § 5231(e) or (j) and the judgment debtor’s employer has a representative authorized to receive service within the City limits, the marshal may serve the income execution upon the employer within the City limits. Marshals should note that under CPLR § 5231(b), if the judgment debtor is a non-resident of the state, the income execution may be delivered in the first instance to the sheriff or enforcement officer with jurisdiction in the county (within the state) where the debtor is employed. Service of the income execution upon the judgment debtor must then be made in accordance with CPLR 5231(d).
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Section 5: SPECIFIC EXECUTIONS
Section 5-1: Exemptions
Generally, the benefits of individuals receiving public assistance and/or Worker's Compensation benefits may not be levied upon. CPLR § 5205(e) exempts the pay of certain members of the armed forces. The marshal should refer to the applicable law on the subject.
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Section 5-2: Priorities
Priorities are set by date of delivery of the income execution to the enforcement officer, sheriff or marshal, not by date of levy. Therefore, immediately upon receiving an income execution, a marshal must endorse the time, e.g., the minute, hour, and date, on the execution.
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Section 5-3: Loss of Employment
If a judgment debtor leaves his or her position any time after the execution is served upon the employer, the execution is ineffective unless the employee is rehired within ninety (90) days. If an employee changes jobs after his or her first employer has been served with an income execution, the debtor’s new employer may be served with the second stage of an income execution without re serving an additional first stage execution.
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Section 5-4: Release
After a judgment has been satisfied, a marshal must send a letter of release to the employer indicating that no more deductions should be made. Any monies collected beyond the amount of the judgment, plus poundage on the monies, must be returned to the judgment debtor's employer.
With respect to the Office of Payroll Administration (OPA), to ensure the timely termination of payroll deductions from paychecks of City employees whose judgment has been satisfied, the OPA will accept a letter of release from the marshal. The letter must be written on the marshal's letterhead stationery and must contain the employee's name, social security number, and garnishee file number.
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Section 5-5: Accountings
When collections pursuant to an income execution run for an extended period of time, a marshal must, upon request, send a statement or an accounting to the judgment debtor to indicate to the debtor the status of the collections.
Section 5-6: Affidavits
Pursuant to Directive 354 of the Civil Court of the City of New York, a judgment creditor is no longer required to provide an affidavit alleging where and by whom the judgment debtor is employed and the amount of his or her earnings.
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Section 5-7: City Employees
When garnishing the salary of City employees, marshals must provide the OPA with the following information:
- Fees Charged
- Additional Disbursements
Employees of the City of New York sometimes make payment directly to marshals after OPA has been served with an income execution. These payments are usually unknown to OPA, and as a result, payroll deductions are made in excess of the judgment amount, causing undue hardship for the judgment debtor.
Consequently, henceforth, when any city employee makes payments totaling fifty ($50.00) dollars or more subsequent to the service of an income execution on OPA, a letter on the marshal's official stationery, signed by the marshal, must be mailed or sent by facsimile transmission to the Director of the Office of Payroll Administration Municipal Building, One Centre Street, Room 200N, New York, New York 10007. This letter must contain the following information:name and social security number of debtor;
- name and social security number of debtor;
- OPA's file number; and
- dates and amounts paid.
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Section 5-8: Service on New York City Office of Payroll Administration
OPA has developed an intake and tracking system for income executions that features the use of data files transferred electronically by secure file transfer protocol (FTP). OPA has asked city marshals who regularly serve income executions upon it to enter all new “second stage” income executions in the data file using secure FTP, and to serve a hard copy of the corresponding executions by certified mail, return receipt requested approximately once each week.
Such service, upon OPA only, is approved, subject to the requirement that the marshal retain proof of service for each income execution. Such proof must, at a minimum, consist of the postal receipt, signed by an authorized representative of OPA, and a list of all income executions contained in the envelope that corresponds to the receipt, also signed by an authorized representative of OPA. The list of income executions contained in the envelope may be computer-generated from the diskette. However, the city marshal is responsible to ensure that all of the income executions on the list have in fact been served. Service of the diskette without the corresponding income execution documents is not sufficient service. The marshal must also enter the postal receipt number and date of mailing in the docket book section for each income execution served upon OPA in the above manner.
A marshal may use the above procedure only after serving the “first stage” of the income execution upon the judgment debtor pursuant to CPLR § 5231(d).
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Section 5-9: State Employees
Where the garnishee is New York State, either the head of a particular department at the department's office in Albany or the State Department of Audit and Control in Albany must be served.
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Section 5-10: Small Claims
Combination property‑income execution forms are available through the Small Claims part of the Civil Court in every borough.If a plaintiff has appeared pro‑se, that is, without benefit of counsel, the marshal is required to have the clerk of the appropriate court issue an execution on the combination form. However, when the plaintiff is represented by an attorney, the attorney may issue an income execution without specific use of this combination execution form.