N.Y. CPLR § 5241

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 5241 Income execution for support enforcement § 5241. Income execution for support enforcement. (a) Definitions. Asused in this section and in section fifty-two hundred forty-two of thischapter, 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 ordecree in a matrimonial action or family court proceeding, or anyforeign support order, judgment or decree, registered pursuant toarticle five-B of the family court act which directs the payment ofalimony, maintenance, support or child support.2. "Debtor" means any person directed to make payments by an order ofsupport.3. "Creditor" means any person entitled to enforce an order ofsupport, 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 anypension fund, benefit program, policy of insurance or annuity;(ii) the state of New York or any political subdivision thereof, orthe United States; and(iii) any person, corporation, trustee, unincorporated business orassociation, partnership, financial institution, bank, savings and loanassociation, credit union, stock purchase plan, stock option plan,profit sharing plan, stock broker, commodities broker, bond broker, realestate broker, insurance company, entity or institution.6. "Income" includes any earned, unearned, taxable or non-taxableincome, benefits, or periodic or lump sum payment due to an individual,regardless of source, including wages, salaries, commissions, bonuses,workers' compensation, disability benefits, unemployment insurancebenefits, payme lump sum payment due to an individual,regardless of source, including wages, salaries, commissions, bonuses,workers' compensation, disability benefits, unemployment insurancebenefits, payments pursuant to a public or private pension or retirementprogram, federal social security benefits as defined in 42 U.S.C.section 662(f) (2), and interest, but excluding public assistancebenefits paid pursuant to the social services law and federalsupplemental security income.7. "Default" means the failure of a debtor to remit to a creditorthree payments on the date due in the full amount directed by the orderof support, or the accumulation of arrears equal to or greater than theamount directed to be paid for one month, whichever first occurs.8. "Mistake of fact" means an error in the amount of current supportor arrears or in the identity of the debtor or that the order of supportsupport does not exist or has been vacated.9. "Support collection unit" means any support collection unitestablished by a social services district pursuant to the provisions ofsection one hundred eleven-h of the social services law.10. "Date of withholding" means the date on which the income wouldotherwise have been paid or made available to the debtor were it notwithheld by the employer or income payor.11. "Health insurance benefits" means any medical, dental, optical andprescription drugs and health care services or other health carebenefits which may be provided for dependents through an employer ororganization, including such employers or organizations which areself-insured.12. "Business day" means a day on which state offices are open forregular business.13. "Issuer" means a support collection unit, sheriff, the clerk ofcourt, or the attorney for the creditor.(b) Issuance. (1) When a debtor is in default, an execution forsupport enforcement may be issued by the support collection unit, or byt e clerk ofcourt, or the attorney for the creditor.(b) Issuance. (1) When a debtor is in default, an execution forsupport enforcement may be issued by the support collection unit, or bythe sheriff, the clerk of court or the attorney for the creditor as anofficer of the court. Where a debtor is receiving or will receiveincome, an execution for deductions therefrom in amounts not to exceedthe limits set forth in subdivision (g) of this section may be servedupon an employer or income payor after notice to the debtor. The amountof the deductions to be withheld shall be sufficient to ensurecompliance with the direction in the order of support, and shall includean additional amount to be applied to the reduction of arrears. Theissuer may amend the execution before or after service upon the employeror income payor to reflect additional arrears or payments made by thedebtor after notice pursuant to subdivision --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only (d) of this section, or toconform the execution to the facts found upon a determination madepursuant to subdivision (e) of this section.(2) (i) Where the court orders the debtor to provide health insurancebenefits for specified dependents, an execution for medical supportenforcement may, except as provided for herein, be issued by the supportcollection unit, or by the sheriff, the clerk of court or the attorneyfor the creditor as an officer of the court; provided, however, thatwhen the court issues an order of child support or combined child andspousal support on behalf of persons other than those in receipt ofpublic assistance or in receipt of services pursuant to section onehundred eleven-g of the social services law, such medical executionshall be in the form of a separate qualified medical child support orderas provided by subdivision (j) of section four undred eleven-g of the social services law, such medical executionshall be in the form of a separate qualified medical child support orderas provided by subdivision (j) of section four hundred sixteen of thefamily court act and paragraph (h) of subdivision one of section twohundred forty of the domestic relations law. Such execution for medicalsupport enforcement may require the debtor's employer, organization orgroup health plan administrator to purchase on behalf of the debtor andthe debtor's dependents such available health insurance benefits. Suchexecution shall direct the employer, organization or group health planadministrator to provide to the dependents for whom such benefits arerequired to be provided or such dependents' custodial parent or legalguardian or social services district on behalf of persons applying foror in receipt of public assistance any identification cards and benefitclaim forms and to withhold from the debtor's income the employee'sshare of the cost of such health insurance benefits, and to providewritten confirmation of such enrollment indicating the date suchbenefits were or become available or that such benefits are notavailable and the reasons therefor to the issuer of the execution. Anexecution for medical support enforcement shall not require a debtor'semployer, organization or group health plan administrator to purchase orotherwise acquire health insurance or health insurance benefits thatwould not otherwise be available to the debtor by reason of his or heremployment or membership. Nothing herein shall be deemed to obligate orotherwise hold any employer, organization or group health planadministrator responsible for an option exercised by the debtor inselecting medical insurance coverage by an employee or member.(ii) Where the child support order requires the debtor to providehealth insurance benefits for specified dependents, and where t selecting medical insurance coverage by an employee or member.(ii) Where the child support order requires the debtor to providehealth insurance benefits for specified dependents, and where the debtorprovides such coverage and then changes employment, and the new employerprovides health care coverage, an amended execution for medical supportenforcement may be issued by the support collection unit, or by thesheriff, the clerk of the court or the attorney for the creditor as anofficer of the court without any return to court. The issuance of theamended execution shall transfer notice of the requirements of the orderand the execution to the new employer, organization or group health planadministrator, and shall have the same effect as the original executionfor medical support issued pursuant to this section unless the debtorcontests the execution.(3) Any inconsistent provisions of this title or other lawnotwithstanding, in any case in which a parent is required by a courtorder to provide health coverage for a child and the parent is eligiblefor health insurance benefits as defined in this section through anemployer or organization, including those which are self-insured, doingbusiness in the state, such employer or organization must, in additionto implementing the provisions of a medical support execution:(i) permit such parent to immediately enroll under such healthinsurance benefit coverage any such dependent who is otherwise eligiblefor such coverage without regard to any seasonal enrollmentrestrictions;(ii) if such a parent is enrolled but fails to make application toobtain coverage of such dependent child, immediately enroll suchdependent child under such health benefit coverage upon application bysuch child's other parent or by the office of temporary and disabilityassistance or social services district furnishing medical assistance tosuch child, and(iii) not disenroll, or el ation bysuch child's other parent or by the office of temporary and disabilityassistance or social services district furnishing medical assistance tosuch child, and(iii) not disenroll, or eliminate coverage of, such a child unless:(A) the employer or organization is provided with satisfactory writtenevidence that such court order is no longer in effect, or the child isor will be enrolled in comparable health coverage through anotherinsurer which will take effect not later than the effective date of suchdisenrollment, or(B) such employer or organization has eliminated health insurancecoverage for all CPLR § 5241 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only similarly situated employees.(c) Execution for support enforcement; form. (1) The income executionshall be on the form for income withholding promulgated by the office oftemporary and disability assistance for this purpose and shall includethe necessary information and directions to ensure its characterizationas an income withholding notice as described and required by subsection(b) of section six hundred sixty-six of title forty-two of the UnitedStates Code; provided, however, that where the court enters an order forspousal support only for which income withholding will be ordered by thesheriff, the clerk of court or the attorney for the creditor, analternate spousal support form for income withholding promulgated by theoffice of temporary and disability assistance may be used but is notrequired. In addition, the income execution shall specify the court inwhich it was entered, the amount of the periodic payments directed, andthe names of the debtor and creditor. In addition, to the extent notalready provided on the form for income withholding, a separate documentshall be served with the income execution which shall include:(i) the name and address of addition, to the extent notalready provided on the form for income withholding, a separate documentshall be served with the income execution which shall include:(i) the name and address of the employer or income payor from whom thedebtor is receiving or will receive income;(ii) the amount of the deductions to be made therefrom on account ofcurrent support, and the amount to be applied to the reduction ofarrears;(iii) a notice that deductions will apply to current and subsequentincome;(iv) a notice that the income execution will be served upon anycurrent or subsequent employer or income payor unless a mistake of factis shown within fifteen days, a notice of the manner in which a mistakeof fact may be asserted, and a notice that, if the debtor claims amistake of fact, a determination will be made within forty-five daysafter notice to the debtor as provided in subdivision (d) of thissection, and that the debtor will receive written notice whether theincome execution will be served and of the time that deductions willbegin;(v) a notice that the employer or income payor must commencedeductions no later than the first pay period that occurs after fourteendays following the service of the income execution and that payment mustbe remitted within seven business days of the date that the debtor paid;(vi) a notice that the income execution is binding until furthernotice;(vii) a notice of the substance of the provisions of section fifty-twohundred fifty-two of this article and that a violation thereof ispunishable as a contempt of court by fine or imprisonment or both;(viii) a notice of the limitations upon deductions from wages setforth in subdivision (g) of this section;(ix) a notice that an employer must notify the issuer promptly whenthe debtor terminates employment and provide the debtor's last addressand the name and address of the new employer, if known;(x) a notice that when an em must notify the issuer promptly whenthe debtor terminates employment and provide the debtor's last addressand the name and address of the new employer, if known;(x) a notice that when an employer receives an income withholdinginstrument issued by another state, the employer shall apply the incomewithholding law of the state of the debtor's principal place ofemployment in determining:(A) the employer's fee for processing income withholding;(B) the maximum amount permitted to be withheld from the debtor'sincome;(C) the time periods within which the employer must implement theincome withholding and forward the child support payment;(D) the priorities for withholding and allocating income withheld formultiple child support creditors; and(E) any withholding terms or conditions not specified in thewithholding instrument;(xi) a notice that an employer who complies with an income executionthat is regular on its face shall not be subject to civil liability toany individual or agency for conduct in compliance with the notice; and(xii) the amount of arrears.(2) The medical support execution shall contain the caption of theorder of support and specify the date that the order of support wasentered and the court in which it was entered. Such execution shallinclude the name and address of the employer or organization and shallinclude:(i) a notice that the debtor has been ordered by the court to enrollthe dependents in any available health insurance benefits and tomaintain such coverage for such dependents as long as such benefitsremain available;(ii) a notice inquiring of the employer or organization as to whethersuch health insurance benefits are presently in effect for the eligibledependents named in the execution, the date such benefits were or becomeavailable, or that such benefits are not available and the reasonstherefor and directing that the response to such inquiry immediately befor e execution, the date such benefits were or becomeavailable, or that such benefits are not available and the reasonstherefor and directing that the response to such inquiry immediately beforwarded to the issuer of such execution;(iii) a statement directing the employer or organization to purchaseon behalf of the debtor any available health insurance benefits to bemade available to the debtor's dependents as directed by the execution,including the enrollment of such eligible dependents in such CPLR § 5241 Page 3 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only benefitplans and the provision to the dependents or such dependents' custodialparent or legal guardian or social services district on behalf ofpersons applying for or in receipt of public assistance of anyidentification cards and benefit claim forms;(iv) a statement directing the employer or organization to deduct fromthe debtor's income such amount which is the debtor's share of thepremium, if any, for such health insurance benefits for such dependentswho are otherwise eligible for such coverage without regard to anyseasonal enrollment restrictions;(v) a notice that the debtor's employer must notify the issuerpromptly at any time the debtor terminates or changes such healthinsurance benefits;(vi) a statement that the debtor's employer or organization shall notbe required to purchase or otherwise acquire health insurance or healthinsurance benefits for such dependents that would not otherwise beavailable to the debtor by reason of his employment or membership;(vii) a statement that failure to enroll the eligible dependents insuch health insurance plan or benefits or failure to deduct from thedebtor's income the debtor's share of the premium for such plan orbenefits shall make such employer or organization jointly and severallyliable for all medical expenses incurr e to deduct from thedebtor's income the debtor's share of the premium for such plan orbenefits shall make such employer or organization jointly and severallyliable for all medical expenses incurred on the behalf of the debtor'sdependents named in the execution while such dependents are not soenrolled to the extent of the health insurance benefits that should havebeen provided under the execution;(viii) the name and last known mailing address of the debtor and thename and mailing address of the dependents; provided however, that thename and mailing address of a social services official may besubstituted on behalf of such dependents;(ix) a reasonable description of the type of coverage to be providedto each dependent, or the manner in which such type of coverage is to bedetermined;(x) the period to which such execution applies; and(xi) a statement that the debtor's employer or organization shall notbe required to provide any type or form of benefit or option nototherwise provided under the group health plan except to the extentnecessary to meet the requirements of a law relating to medical childsupport described in section one thousand three hundred ninety-six-g-1of title forty-two of the United States Code.(d) Notice to debtor. The issuer shall serve a copy of the executionupon the debtor by regular mail to the debtor at his last knownresidence or such other place where he is likely to receive notice, orin the same manner as a summons may be served.(e) Determination of mistake of fact. Where the execution has beenissued by the support collection unit, the debtor may assert a mistakeof fact and shall have an opportunity to make a submission in support ofthe objection within fifteen days from service of a copy thereof.Thereafter, the agency shall determine the merits of the objection, andshall notify the debtor of its determination within forty-five daysafter notice to the debtor as pr ervice of a copy thereof.Thereafter, the agency shall determine the merits of the objection, andshall notify the debtor of its determination within forty-five daysafter notice to the debtor as provided in subdivision (d) of thissection. If the objection is disallowed, the debtor shall be notifiedthat the income execution will be served on the employer or incomepayor, and of the time that deductions will begin. Where the incomeexecution has been issued by an attorney as officer of the court, or bythe sheriff, or by the clerk of the court, the debtor may assert amistake of fact within fifteen days from service of a copy thereof byapplication to the supreme court or to the family court havingjurisdiction in accordance with section four hundred sixty-one of thefamily court act. If application is made to the family court, suchapplication shall be by petition on notice to the creditor and it shallbe heard and determined in accordance with the provisions of sectionfour hundred thirty-nine of the family court act, and a determinationthereof shall be made, and the debtor notified thereof within forty-fivedays of the application. If application is made to the supreme courtsuch application shall be by order to show cause or motion on notice tothe creditor in the action in which the order or judgement sought to beenforced was entered and a determination thereof shall be made, and thedebtor notified thereof within forty-five days of the application.(f) Levy. If a debtor fails to show mistake of fact within fifteendays, or after a determination pursuant to subdivision (e) of thissection has been made, or if the issuer is unable to serve the executionupon the debtor, the creditor may levy upon the income that the debtoris receiving or will receive by serving the execution upon the employeror income payor personally in the same manner as a summons or by regularmail, except that such service sh hat the debtoris receiving or will receive by serving the execution upon the employeror income payor personally in the same manner as a summons or by regularmail, except that such service shall not be made by delivery to a personauthorized to receive service of summons solely by a designation filedpursuant to a provision of law other than rule 318.(g) Deduction from income. CPLR § 5241 Page 4 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only (1) An employer or income payor served withan income execution shall commence deductions from income due orthereafter due to the debtor no later than the first pay period thatoccurs fourteen days after service of the execution, and shall remitpayments within seven business days of the date that the debtor is paid.Each payment remitted by an employer or income payor shall include theinformation as instructed on the income execution and shall be payableto and remitted to the state disbursement unit established in this statein accordance with section six hundred fifty-four-b of title forty-twoof the United States Code unless the income execution is for spousalsupport only, in which case the payments shall be payable to andremitted to the creditor. If the money due to the debtor consists ofsalary or wages and his or her employment is terminated by resignationor dismissal at any time after service of the execution, the levy shallthereafter be ineffective, and the execution shall be returned, unlessthe debtor is reinstated or re-employed within ninety days after suchtermination. An employer must notify the issuer promptly when the debtorterminates employment and provide the debtor's last address and name andaddress of the new employer, if known. An income payor must notify theissuer promptly when the debtor no longer receives income and mustprovide the debtor's last address and the n nd name andaddress of the new employer, if known. An income payor must notify theissuer promptly when the debtor no longer receives income and mustprovide the debtor's last address and the name and address of thedebtor's new employer, if known. Where the income is compensation paidor payable to the debtor for personal services, the amount of thedeductions to be withheld shall not exceed the following:(i) Where a debtor is currently supporting a spouse or dependent childother than the creditor, the amount of the deductions to be withheldshall not exceed fifty percent of the earnings of the debtor remainingafter the deduction therefrom of any amounts required by law to bewithheld ("disposable earnings"), except that if any part of suchdeduction is to be applied to the reduction of arrears which shall haveaccrued more than twelve weeks prior to the beginning of the week forwhich such earnings are payable, the amount of such deduction shall notexceed fifty-five percent of disposable earnings.(ii) Where a debtor is not currently supporting a spouse or dependentchild other than the creditor, the amount of the deductions to bewithheld shall not exceed sixty percent of the earnings of the debtorremaining after the deduction therefrom of any amounts required by lawto be withheld ("disposable earnings"), except that if any part of suchdeduction is to be applied to the reduction of arrears which shall haveaccrued more than twelve weeks prior to the beginning of the week forwhich such earnings are payable, the amount of such deduction shall notexceed sixty-five percent of disposable earnings.(2) (A) An employer or income payor served with an income executionin accordance with paragraph one of this subdivision shall be liable tothe creditor for failure to deduct the amounts specified. The creditormay commence a proceeding against the employer or income payor foraccrueded deductions, together ubdivision shall be liable tothe creditor for failure to deduct the amounts specified. The creditormay commence a proceeding against the employer or income payor foraccrueded deductions, together with interest and reasonable attorney'sfees.(B) An employer or income payor served with an income execution inaccordance with paragraph one of this subdivision shall be liable to thecreditor and the debtor for failure to remit any amounts which have beendeducted as directed by the income execution. Either party may commencea proceeding against the employer or income payor for accrueddeductions, together with interest and reasonable attorney's fees.(C) The actions of the employer or income payor in deducting orfailing to deduct amounts specified by an income execution shall notrelieve the debtor of the underlying obligation of support.(D) In addition to the remedies herein provided and as may beotherwise authorized by law, upon a finding by the family court that theemployer or income payor failed to deduct or remit deductions asdirected in the income execution, the court shall issue to the employeror income payor an order directing compliance and may direct the paymentof a civil penalty not to exceed five hundred dollars for the firstinstance and one thousand dollars per instance for the second andsubsequent instances of employer or income payor noncompliance. Thepenalty shall be paid to the creditor and may be enforced in the samemanner as a civil judgment or in any other manner permitted by law.(3) If an employer, organization or group health plan administrator isserved with an execution for medical support enforcement, such employer,organization or group health plan administrator shall: (i) purchase onbehalf of the debtor any health insurance benefits which may be madeavailable to the debtor's dependents as ordered by the execution,including the immediate enrollment of such eligible depen se onbehalf of the debtor any health insurance benefits which may be madeavailable to the debtor's dependents as ordered by the execution,including the immediate enrollment of such eligible dependents in suchbenefit plans; (ii) provide the dependents for whom such benefits arerequired, or a social services official substituted for such dependents,identification cards and benefit claim forms; (iii) commence deductionsfrom CPLR § 5241 Page 5 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only income due or thereafter due to the debtor of such amount which isthe debtor's share of the premium, if any, for such health insurancebenefits, provided, however, that such deduction when combined withdeductions for support does not exceed the limitations set forth inparagraph one of this subdivision and is consistent with the priorityprovisions set forth in subdivision (h) of this section; and (iv)provide a confirmation of such enrollment indicating the date suchbenefits were or become available or that such benefits are notavailable and the reasons therefor to the issuer of the execution.Except as otherwise provided by law, nothing herein shall be deemed toobligate an employer or organization to maintain or continue anemployee's or member's health insurance benefits.(4) If such employer, organization or group health plan administratorshall fail to so enroll such eligible dependents or to deduct from thedebtor's income the debtor's share of the premium, such employer,organization or group health plan administrator shall be jointly andseverally liable for all medical expenses incurred on behalf of thedebtor's dependents named in the execution while such dependents are notso enrolled to the extent of the insurance benefits that should havebeen provided under such execution. Except as otherwise provided by law,nothing herein shall b hile such dependents are notso enrolled to the extent of the insurance benefits that should havebeen provided under such execution. Except as otherwise provided by law,nothing herein shall be deemed to obligate an employer, organization orgroup health plan administrator to maintain or continue an employee's ormember's health insurance benefits.(h) Priority. A levy pursuant to this section or an income deductionorder pursuant to section 5242 of this chapter shall take priority overany other assignment, levy or process. If an employer or income payor isserved with more than one execution pursuant to this section, or with anexecution pursuant to this section and also an order pursuant to section5242 of this chapter, and if the combined total amount of the deductionsto be withheld exceeds the limits set forth in subdivision (g) of thissection, the employer or income payor shall withhold the maximum amountpermitted thereby and pay to each creditor that proportion thereof whichsuch creditor's claim bears to the combined total. Any additionaldeduction authorized by subdivision (g) of this section to be applied tothe reduction of arrears shall be applied to such arrears in proportionto the amount of arrears due to each creditor. Deductions to satisfycurrent support obligations shall have priority over deductions for thedebtor's share of health insurance premiums which shall have priorityover any additional deduction authorized by subdivision (g) of thissection.(i) Levy upon money payable by the state. A levy upon money payabledirectly by a department of the state, or by an institution under itsjurisdiction, shall be made by serving the income execution upon thehead of the department, or upon a person designated by him, at theoffice of the department in Albany; a levy upon money payable directlyupon the state comptroller's warrant, or directly by a state board,commission, body or a person designated by him, at theoffice of the department in Albany; a levy upon money payable directlyupon the state comptroller's warrant, or directly by a state board,commission, body or agency which is not within any department of thestate, shall be made by serving the execution upon the state departmentof audit and control at its office in Albany. Service at the office of adepartment or any agency or institution of the state in Albany may bemade by registered or certified mail, return receipt requested. CPLR § 5241 Page 6