NY CPLR § 5241 (2021)
2021 New York Laws CVP - Civil Practice Law and Rules Article 52 - Enforcement of Money Judgments 5241 - Income Execution for Support Enforcement.

§  5241. Income execution for support enforcement. (a) Definitions. As used in this section and in section fifty-two hundred forty-two of  this chapter, 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  or decree  in  a  matrimonial  action  or  family  court proceeding, or any foreign support  order,  judgment  or  decree,  registered  pursuant  to article  five-B  of  the  family  court act which directs the payment of alimony, maintenance, support or child support.   2. "Debtor" means any person directed to make payments by an order  of support.   3.  "Creditor"  means  any  person  entitled  to  enforce  an order of support, 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 any pension fund, benefit program, policy of insurance or annuity;  (ii) the state of New York or any political  subdivision  thereof,  or the United States; and  (iii)  any  person,  corporation,  trustee, unincorporated business or association, partnership, financial institution, bank, savings and  loan association,  credit  union,  stock  purchase  plan,  stock option plan, profit sharing plan, stock broker, commodities broker, bond broker, real estate broker, insurance company, entity or institution.   6. "Income" includes any  earned,  unearned,  taxable  or  non-taxable income,  benefits, or periodic or lump sum payment due to an individual, regardless of source, including wages, salaries,  commissions,  bonuses, workers'   compensation,  disability  benefits,  unemployment  insurance benefits, payments pursuant to a public or private pension or retirement program, federal social  security  benefits  as  defined  in  42  U.S.C. section  662(f)  (2),  and  interest,  but  excluding  public assistance benefits  paid  pursuant  to  the  social  services  law   and   federal supplemental security income.   7.  "Default"  means  the  failure  of a debtor to remit to a creditor three payments on the date due in the full amount directed by the  order of  support, or the accumulation of arrears equal to or greater than the amount directed to be paid for one month, whichever first occurs.   8. "Mistake of fact" means an error in the amount of  current  support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.   9.  "Support  collection  unit"  means  any  support  collection  unit established by a social services district pursuant to the provisions  of section one hundred eleven-h of the social services law.   10.  "Date  of  withholding"  means the date on which the income would otherwise have been paid or made available to the  debtor  were  it  not withheld by the employer or income payor.   11. "Health insurance benefits" means any medical, dental, optical and prescription  drugs  and  health  care  services  or  other  health care benefits which may be provided for dependents  through  an  employer  or organization,  including  such  employers  or  organizations  which  are self-insured.   12. "Business day" means a day on which state  offices  are  open  for regular business.   13.  "Issuer"  means  a support collection unit, sheriff, the clerk of court, or the attorney for the creditor.  (b) Issuance. (1) When a  debtor  is  in  default,  an  execution  for support  enforcement may be issued by the support collection unit, or by  the sheriff, the clerk of court or the attorney for the creditor  as  an officer  of  the  court.  Where  a  debtor  is receiving or will receive income, an execution for deductions therefrom in amounts not  to  exceed the  limits  set  forth in subdivision (g) of this section may be served upon an employer or income payor after notice to the debtor. The  amount of  the  deductions  to  be  withheld  shall  be  sufficient  to  ensure compliance with the direction in the order of support, and shall include an additional amount to be applied to  the  reduction  of  arrears.  The issuer may amend the execution before or after service upon the employer or  income  payor  to reflect additional arrears or payments made by the debtor after notice pursuant to subdivision (d) of this section,  or  to conform  the  execution  to  the  facts  found upon a determination made pursuant to subdivision (e) of this section.  (2) (i) Where the court orders the debtor to provide health  insurance benefits  for  specified  dependents,  an  execution for medical support enforcement may, except as provided for herein, be issued by the support collection unit, or by the sheriff, the clerk of court or  the  attorney for  the  creditor  as  an officer of the court; provided, however, that when the court issues an order of child support or  combined  child  and spousal  support  on  behalf  of  persons other than those in receipt of public assistance or in receipt of  services  pursuant  to  section  one hundred  eleven-g  of  the  social  services law, such medical execution shall be in the form of a separate qualified medical child support order as provided by subdivision (j) of section four hundred  sixteen  of  the family  court  act  and  paragraph (h) of subdivision one of section two hundred forty of the domestic relations law. Such execution for  medical support  enforcement  may require the debtor's employer, organization or group health plan administrator to purchase on behalf of the debtor  and the  debtor's  dependents such available health insurance benefits. Such execution shall direct the employer, organization or group  health  plan administrator  to  provide  to the dependents for whom such benefits are required to be provided or such dependents' custodial  parent  or  legal guardian  or  social services district on behalf of persons applying for or in receipt of public assistance any identification cards and  benefit claim  forms  and  to  withhold  from the debtor's income the employee's share of the cost of such health  insurance  benefits,  and  to  provide written  confirmation  of  such  enrollment  indicating  the  date  such benefits were  or  become  available  or  that  such  benefits  are  not available  and  the  reasons therefor to the issuer of the execution. An execution for medical support enforcement shall not require  a  debtor's employer, organization or group health plan administrator to purchase or otherwise  acquire  health  insurance  or health insurance benefits that would not otherwise be available to the debtor by reason of his  or  her employment  or membership. Nothing herein shall be deemed to obligate or otherwise  hold  any  employer,  organization  or  group   health   plan administrator  responsible  for  an  option  exercised  by the debtor in selecting medical insurance coverage by an employee or member.  (ii) Where the child support order  requires  the  debtor  to  provide health insurance benefits for specified dependents, and where the debtor provides such coverage and then changes employment, and the new employer provides  health care coverage, an amended execution for medical support enforcement may be issued by the support  collection  unit,  or  by  the sheriff,  the  clerk of the court or the attorney for the creditor as an officer of the court without any return to court. The  issuance  of  the amended execution shall transfer notice of the requirements of the order and the execution to the new employer, organization or group health plan administrator,  and shall have the same effect as the original execution  for medical support issued pursuant to this section  unless  the  debtor contests the execution.  (3)   Any   inconsistent   provisions  of  this  title  or  other  law notwithstanding, in any case in which a parent is required  by  a  court order  to provide health coverage for a child and the parent is eligible for health insurance benefits as defined  in  this  section  through  an employer  or organization, including those which are self-insured, doing business in the state, such employer or organization must,  in  addition to implementing the provisions of a medical support execution:  (i)  permit  such  parent  to  immediately  enroll  under  such health insurance benefit coverage any such dependent who is otherwise  eligible for   such   coverage   without   regard   to  any  seasonal  enrollment restrictions;  (ii) if such a parent is enrolled but fails  to  make  application  to obtain  coverage  of  such  dependent  child,  immediately  enroll  such dependent child under such health benefit coverage upon  application  by such  child's  other parent or by the office of temporary and disability assistance or social services district furnishing medical assistance  to such child, and  (iii)  not  disenroll,  or eliminate coverage of, such a child unless: (A) the employer or organization is provided with  satisfactory  written evidence  that  such court order is no longer in effect, or the child is or will be  enrolled  in  comparable  health  coverage  through  another insurer which will take effect not later than the effective date of such disenrollment, or  (B)  such  employer  or  organization  has eliminated health insurance coverage for all similarly situated employees.  (c) Execution for support enforcement; form.  (1) The income execution shall be on the form for income withholding promulgated by the office of temporary and disability assistance for this purpose and  shall  include the  necessary information and directions to ensure its characterization as an income withholding notice as described and required by  subsection (b)  of  section  six hundred sixty-six of title forty-two of the United States Code; provided, however, that where the court enters an order for spousal support only for which income withholding will be ordered by the sheriff, the clerk of  court  or  the  attorney  for  the  creditor,  an alternate spousal support form for income withholding promulgated by the office  of  temporary  and  disability assistance may be used but is not required. In addition, the income execution shall specify the  court  in which  it was entered, the amount of the periodic payments directed, and the names of the debtor and creditor. In addition,  to  the  extent  not already provided on the form for income withholding, a separate document shall be served with the income execution which shall include:  (i) the name and address of the employer or income payor from whom the debtor is receiving or will receive income;  (ii)  the  amount of the deductions to be made therefrom on account of current support, and the amount  to  be  applied  to  the  reduction  of arrears;  (iii)  a  notice  that deductions will apply to current and subsequent income;  (iv) a notice that the  income  execution  will  be  served  upon  any current  or subsequent employer or income payor unless a mistake of fact is shown within fifteen days, a notice of the manner in which a  mistake of  fact  may  be  asserted,  and  a notice that, if the debtor claims a mistake of fact, a determination will be  made  within  forty-five  days after  notice  to  the  debtor  as  provided  in subdivision (d) of this section, and that the debtor will receive  written  notice  whether  the  income  execution  will  be  served and of the time that deductions will begin;  (v)  a  notice  that  the  employer  or  income  payor  must  commence deductions no later than the first pay period that occurs after fourteen days following the service of the income execution and that payment must be remitted within seven business days of the date that the debtor paid;  (vi) a notice that the  income  execution  is  binding  until  further notice;  (vii) a notice of the substance of the provisions of section fifty-two hundred  fifty-two  of  this  article  and  that  a violation thereof is punishable as a contempt of court by fine or imprisonment or both;  (viii) a notice of the limitations  upon  deductions  from  wages  set forth in subdivision (g) of this section;  (ix)  a  notice  that an employer must notify the issuer promptly when the debtor terminates employment and provide the debtor's  last  address and the name and address of the new employer, if known;  (x)  a  notice  that  when  an employer receives an income withholding instrument issued by another state, the employer shall apply the  income withholding  law  of  the  state  of  the  debtor's  principal  place of employment in determining:  (A) the employer's fee for processing income withholding;  (B) the maximum amount permitted to  be  withheld  from  the  debtor's income;  (C)  the  time  periods  within  which the employer must implement the income withholding and forward the child support payment;  (D) the priorities for withholding and allocating income withheld  for multiple child support creditors; and  (E)   any  withholding  terms  or  conditions  not  specified  in  the withholding instrument;  (xi) a notice that an employer who complies with an  income  execution that  is  regular on its face shall not be subject to civil liability to any 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  the order  of  support  and  specify  the date that the order of support was entered and the court in which it  was  entered.  Such  execution  shall include  the  name and address of the employer or organization and shall include:  (i) a notice that the debtor has been ordered by the court  to  enroll the  dependents  in  any  available  health  insurance  benefits  and to maintain such coverage for such dependents  as  long  as  such  benefits remain available;  (ii)  a notice inquiring of the employer or organization as to whether such health insurance benefits are presently in effect for the  eligible dependents named in the execution, the date such benefits were or become available,  or  that  such  benefits  are  not available and the reasons therefor and directing that the response to such inquiry immediately  be forwarded to the issuer of such execution;  (iii)  a  statement directing the employer or organization to purchase on behalf of the debtor any available health insurance  benefits  to  be made  available to the debtor's dependents as directed by the execution, including the enrollment of such eligible  dependents  in  such  benefit plans  and the provision to the dependents or such dependents' custodial parent or legal guardian  or  social  services  district  on  behalf  of persons  applying  for  or  in  receipt  of  public  assistance  of  any identification cards and benefit claim forms;  (iv) a statement directing the employer or organization to deduct from the debtor's income such amount which  is  the  debtor's  share  of  the  premium,  if any, for such health insurance benefits for such dependents who are otherwise eligible for  such  coverage  without  regard  to  any seasonal enrollment restrictions;  (v)  a  notice  that  the  debtor's  employer  must  notify the issuer promptly at any time  the  debtor  terminates  or  changes  such  health insurance benefits;  (vi)  a statement that the debtor's employer or organization shall not be required to purchase or otherwise acquire health insurance or  health insurance  benefits  for  such  dependents  that  would not otherwise be available to the debtor by reason of his employment or membership;  (vii) a statement that failure to enroll the  eligible  dependents  in such  health  insurance  plan  or benefits or failure to deduct from the debtor's income the debtor's share of  the  premium  for  such  plan  or benefits  shall make such employer or organization jointly and severally liable for all medical expenses incurred on the behalf of  the  debtor's dependents  named  in  the  execution  while  such dependents are not so enrolled to the extent of the health insurance benefits that should have been provided under the execution;  (viii) the name and last known mailing address of the debtor  and  the name  and  mailing address of the dependents; provided however, that the name  and  mailing  address  of  a  social  services  official  may   be substituted on behalf of such dependents;  (ix)  a  reasonable description of the type of coverage to be provided to each dependent, or the manner in which such type of coverage is to be determined;  (x) the period to which such execution applies; and  (xi) a statement that the debtor's employer or organization shall  not be  required  to  provide  any  type  or  form  of benefit or option not otherwise provided under the group health  plan  except  to  the  extent necessary  to  meet  the requirements of a law relating to medical child support described in section one thousand three  hundred  ninety-six-g-1 of title forty-two of the United States Code.  (d)  Notice  to debtor. The issuer shall serve a copy of the execution upon the debtor by  regular  mail  to  the  debtor  at  his  last  known residence  or  such other place where he is likely to receive notice, or in the same manner as a summons may be served.  (e) Determination of mistake of fact. Where  the  execution  has  been issued  by  the support collection unit, the debtor may assert a mistake of fact and shall have an opportunity to make a submission in support of the objection within fifteen  days  from  service  of  a  copy  thereof. Thereafter,  the agency shall determine the merits of the objection, and shall notify the debtor of  its  determination  within  forty-five  days after  notice  to  the  debtor  as  provided  in subdivision (d) of this section. If the objection is disallowed, the debtor  shall  be  notified that  the  income  execution  will  be  served on the employer or income payor, and of the time that deductions  will  begin.  Where  the  income execution  has been issued by an attorney as officer of the court, or by the sheriff, or by the clerk of the  court,  the  debtor  may  assert  a mistake  of  fact  within fifteen days from service of a copy thereof by application  to  the  supreme  court  or  to  the  family  court  having jurisdiction  in  accordance  with section four hundred sixty-one of the family court act. If application is  made  to  the  family  court,  such application  shall be by petition on notice to the creditor and it shall be heard and determined in accordance with  the  provisions  of  section four  hundred  thirty-nine  of the family court act, and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application. If application is made  to  the  supreme  court such  application shall be by order to show cause or motion on notice to  the creditor in the action in which the order or judgement sought to  be enforced  was entered and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application.  (f)  Levy.  If  a  debtor fails to show mistake of fact within fifteen days, or after a determination  pursuant  to  subdivision  (e)  of  this section has been made, or if the issuer is unable to serve the execution upon  the  debtor, the creditor may levy upon the income that the debtor is receiving or will receive by serving the execution upon the  employer or income payor personally in the same manner as a summons or by regular mail, except that such service shall not be made by delivery to a person authorized  to  receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318.  (g) Deduction from income. (1) An employer or income payor served with an income  execution  shall  commence  deductions  from  income  due  or thereafter  due  to  the  debtor no later than the first pay period that occurs fourteen days after service of the  execution,  and  shall  remit payments within seven business days of the date that the debtor is paid. Each  payment  remitted by an employer or income payor shall include the information as instructed on the income execution and shall  be  payable to and remitted to the state disbursement unit established in this state in  accordance  with section six hundred fifty-four-b of title forty-two of the United States Code unless the income  execution  is  for  spousal support  only,  in  which  case  the  payments  shall  be payable to and remitted to the creditor. If the money due to  the  debtor  consists  of salary  or  wages and his or her employment is terminated by resignation or dismissal at any time after service of the execution, the levy  shall thereafter  be  ineffective, and the execution shall be returned, unless the debtor is reinstated or re-employed within ninety  days  after  such termination. An employer must notify the issuer promptly when the debtor terminates employment and provide the debtor's last address and name and address  of  the new employer, if known. An income payor must notify the issuer promptly when the debtor  no  longer  receives  income  and  must provide  the  debtor's  last  address  and  the  name and address of the debtor's new employer, if known.  Where the income is compensation  paid or  payable  to  the  debtor  for  personal  services, the amount of the deductions to be withheld shall not exceed the following:  (i) Where a debtor is currently supporting a spouse or dependent child other than the creditor, the amount of the  deductions  to  be  withheld shall  not  exceed fifty percent of the earnings of the debtor remaining after the deduction therefrom of any  amounts  required  by  law  to  be withheld  ("disposable  earnings"),  except  that  if  any  part of such deduction is to be applied to the reduction of arrears which shall  have accrued  more  than  twelve weeks prior to the beginning of the week for which such earnings are payable, the amount of such deduction shall  not exceed fifty-five percent of disposable earnings.  (ii)  Where a debtor is not currently supporting a spouse or dependent child other than the creditor,  the  amount  of  the  deductions  to  be withheld  shall  not  exceed sixty percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required  by  law to  be withheld ("disposable earnings"), except that if any part of such deduction is to be applied to the reduction of arrears which shall  have accrued  more  than  twelve weeks prior to the beginning of the week for which such earnings are payable, the amount of such deduction shall  not exceed sixty-five percent of disposable earnings.  (2) (A) An employer or income payor served with an income execution in accordance with paragraph one of this subdivision shall be liable to the creditor  for  failure to deduct the amounts specified. The creditor may  commence a proceeding against the employer or income payor  for  accrued deductions, together with interest and reasonable attorney's fees.  (B)  An  employer  or  income payor served with an income execution in accordance with paragraph one of this subdivision shall be liable to the creditor and the debtor for failure to remit any amounts which have been deducted as directed by the income execution. Either party may  commence a   proceeding   against  the  employer  or  income  payor  for  accrued deductions, together with interest and reasonable attorney's fees.  (C) The actions of the  employer  or  income  payor  in  deducting  or failing  to  deduct  amounts  specified by an income execution shall not relieve the debtor of the underlying obligation of support.  (D) In addition  to  the  remedies  herein  provided  and  as  may  be otherwise authorized by law, upon a finding by the family court that the employer  or  income  payor  failed  to  deduct  or  remit deductions as directed in the income execution, the court shall issue to the  employer or income payor an order directing compliance and may direct the payment of  a  civil  penalty  not  to exceed five hundred dollars for the first instance and one thousand  dollars  per  instance  for  the  second  and subsequent  instances  of  employer  or  income payor noncompliance. The penalty shall be paid to the creditor and may be enforced  in  the  same manner as a civil judgment or in any other manner permitted by law.  (3) If an employer, organization or group health plan administrator is served with an execution for medical support enforcement, such employer, organization  or  group health plan administrator shall: (i) purchase on behalf of the debtor any health insurance benefits  which  may  be  made available  to  the  debtor's  dependents  as  ordered  by the execution, including the immediate enrollment of such eligible dependents  in  such benefit  plans;  (ii)  provide the dependents for whom such benefits are required, or a social services official substituted for such dependents, identification cards and benefit claim forms; (iii) commence  deductions from  income due or thereafter due to the debtor of such amount which is the debtor's share of the premium, if any,  for  such  health  insurance benefits,  provided,  however,  that  such  deduction when combined with deductions for support does not exceed  the  limitations  set  forth  in paragraph  one  of  this subdivision and is consistent with the priority provisions set forth in  subdivision  (h)  of  this  section;  and  (iv) provide  a  confirmation  of  such  enrollment  indicating the date such benefits were  or  become  available  or  that  such  benefits  are  not available  and  the  reasons  therefor  to  the issuer of the execution. Except as otherwise provided by law, nothing herein shall be  deemed  to obligate  an  employer  or  organization  to  maintain  or  continue  an employee's or member's health insurance benefits.  (4) If such employer, organization or group health plan  administrator shall  fail  to so enroll such eligible dependents or to deduct from the debtor's income the  debtor's  share  of  the  premium,  such  employer, organization  or  group  health  plan administrator shall be jointly and severally liable for all medical expenses  incurred  on  behalf  of  the debtor's dependents named in the execution while such dependents are not so  enrolled  to  the  extent of the insurance benefits that should have been provided under such execution. Except as otherwise provided by law, nothing herein shall be deemed to obligate an employer, organization  or group health plan administrator to maintain or continue an employee's or member's health insurance benefits.  (h)  Priority.  A levy pursuant to this section or an income deduction order pursuant to section 5242 of this chapter shall take priority  over any other assignment, levy or process. If an employer or income payor is served with more than one execution pursuant to this section, or with an execution pursuant to this section and also an order pursuant to section  5242 of this chapter, and if the combined total amount of the deductions to  be  withheld exceeds the limits set forth in subdivision (g) of this section, the employer or income payor shall withhold the maximum  amount permitted thereby and pay to each creditor that proportion thereof which such  creditor's  claim  bears  to  the  combined  total. Any additional deduction authorized by subdivision (g) of this section to be applied to the reduction of arrears shall be applied to such arrears in  proportion to  the  amount  of  arrears due to each creditor. Deductions to satisfy current support obligations shall have priority over deductions for  the debtor's  share  of  health insurance premiums which shall have priority over any additional deduction authorized  by  subdivision  (g)  of  this section.  (i)  Levy  upon  money payable by the state. A levy upon money payable directly by a department of the state, or by an  institution  under  its jurisdiction,  shall  be  made  by serving the income execution upon the head of the department, or upon a  person  designated  by  him,  at  the office  of  the department in Albany; a levy upon money payable directly upon the state comptroller's warrant, or  directly  by  a  state  board, commission,  body  or  agency  which is not within any department of the state, shall be made by serving the execution upon the state  department of audit and control at its office in Albany. Service at the office of a department  or  any  agency or institution of the state in Albany may be made by registered or certified mail, return receipt requested.