N.Y. Comp. Codes R. & Regs. tit. 18 § 346.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 346.11 - Article 52 executions

(a) Enforcement of orders and judgments by execution.

(1) Support arrears/past due support for child support or combined spousal and child support payable to the SCU may be enforced by levy upon the support obligor's liquid assets when the support obligor is in default as defined in subdivision (b) of this section.

(2) Notwithstanding the provisions of this section, support arrears/past due support which have been reduced to judgment may be enforced pursuant to this section without affording the support obligor the opportunity to assert a mistake of fact pursuant to the procedures established in subdivision (e) of this section and are not restricted to execution upon the support obligor's liquid assets.

(b) Definitions.

(1) Default. For purposes of this section, a support obligor is in default if he or she has failed to remit to the SCU the accumulation of an amount equal to or greater than the amount directed by court order to be paid for two months. For purposes of this section only, a default may not be founded upon the existence of retroactive support; however, if a support obligor defaults subsequent to the date of the court order, retroactive support may be collected pursuant to the provisions of this section. Any arrears or retroactive support collected pursuant to this section need not be reduced to judgment. A support obligor may assert a mistake of fact pursuant to the procedures established in subdivision (e) of this section prior to the SCU's seizure of the support obligor's assets.

(2) Liquid assets. Liquid assets are cash or assets which are immediately convertible to cash including, but not limited to, debts owed to the support obligor and bank accounts to which the support obligor holds title, unless they are exempt from application to the satisfaction of a judgment pursuant to any provision of law.

(c) Financial investigation of liquid assets. The SCU must obtain and investigate information relating to liquid assets that belong to a support obligor which may be seized to enforce support arrears/past due support pursuant to this section. Information from Federal and State tax information concerning such liquid assets must be reviewed by the SCU, independently verified by the SCU, and must be safeguarded by the SCU in accordance with Federal and State regulations. In addition, such information must be independently verified and documented as such on the child support management system (CSMS) prior to proceeding under paragraph (d)(7) of this section.

(d) Procedure. Support arrears/past due support may be enforced by levy upon a support obligor's property when the support obligor is in default, as follows:

(1) Issuance of restraining notice and information subpoena. For any support obligor in default as defined in subdivision (b) of this section, the SCU must issue a restraining notice to the custodian of the property sought to be executed upon, provided, however, that the SCU must verify the amount of support arrears/past due support owed by the support obligor and must verify the support obligor's current address prior to the issuance of the restraining notice. The identity of the garnishee must be consistent with those requirements specified in section 5201 of the Civil Practice Law and Rules. However, when the SCU determines that the prospective garnishee is the employer of the support obligor and the property sought to be restrained consists of wages or salary due or to become due to the obligor, the SCU must execute upon such property pursuant to section 347.9 of this Title. The restraining notice must include such information as is required by subdivision (a) of section 5222 of the Civil Practice Law and Rules, and must be accompanied by an information subpoena for the purpose of ascertaining or verifying information relating to liquid assets which belong to a support obligor.

(2) Effect of restraining notice.

(i) A support obligor served with a restraining notice is forbidden to permit or undertake the sale, assignment, transfer, or interference with the property which is the subject of the restraining notice, except pursuant to court order, until the support arrears/past due support which gave rise to the restraining notice are satisfied.

(ii) A restraining notice served upon a person other than the support obligor is effective only if, at the time of service, that person owes a debt to the support obligor or is in possession of property in which he or she knows or has reason to believe the support obligor has an interest, or if the restraining notice states that the support obligor has an interest in the subject property. In addition, any property in which the support obligor has an interest which thereafter comes into the possession of that person is subject to the restraining notice. Such person is forbidden to permit or undertake the sale, assignment, transfer, or interference with the property which is the subject of the restraining notice, except pursuant to court order, until the expiration of one year after the notice is served upon such person or until the support arrears/past due support which gave rise to the restraining notice are satisfied, whichever occurs first.

(3) Subsequent restraining notices. Leave of court is required to serve more than one restraining notice upon the same person with respect to the same support arrears/past due support which gave rise to the restraining notice.

(4) Service of notice on the support obligor.

(i) If the restraining notice which has been issued pursuant to paragraph (1) of this subdivision has been served on a person other than the support obligor, and if the support obligor has not been given notice in the form prescribed by subdivision (e) of section 5222 of the Civil Practice Law and Rules within one year before service of the restraining notice, then a copy of the restraining notice together with such notice must be mailed by first class mail or personally delivered to the support obligor within four days of service of the restraining notice upon such other person. If mailed, such notice must be sent by first class mail to the support obligor at his or her residential address. If the notice is returned as undeliverable, or if the support obligor's residential address is unknown, then the notice must be sent by first class mail to the support obligor's place of employment, if known, in an envelope marked "personal and confidential" and not indicating that the communication concerns a support order or judgment. If neither the support obligor's residence address nor place of employment is known, then the notice must be sent by first class mail to any other known address.

(ii) At the time at which such notice is served on the support obligor, the support obligor must also be notified of the following:

(a) the name and address of the SCU which issued the restraining notice; and

(b) that if the support arrears/past due support which gave rise to the restraining notice have not been reduced to judgment, the support obligor may assert a mistake of fact with respect to the SCU's issuance of the restraining notice, as set forth in subdivision (e) of this section, and that such assertion must be made in writing to the SCU within 15 days from service of the notice on the support obligor.

(5) Enforcement of debt subject to mistake of fact determination. If the support obligor asserts a mistake of fact as set forth in subdivision (e) of this section, the SCU must determine the validity of such assertion and provide the support obligor with written notice of its determination within 45 days from the date upon which notice was served upon the support obligor pursuant to paragraph (d)(4) of this section. If no mistake of fact is alleged by the support obligor, or if a determination is made by the SCU that the alleged mistake of fact is without merit, the SCU must proceed to execute upon the restrained property in accordance with this subdivision.

(6) Vacatur of restraining notice. Prior to executing upon a support obligor's property, the SCU must ascertain whether the amount sought to be recovered through the execution has been satisfied through other means or whether a mistake of fact claim has been found to have merit as provided in subdivision (e) of this section. If the amount to be recovered has been satisfied, or if a mistake of fact claim has been found to have merit, the SCU must immediately vacate the restraining notice by notifying the custodian of the property sought to be executed upon.

(7) Issuance of the execution. For any support obligor in default as defined in subdivision (a) of this section who has failed to assert a meritorious mistake of fact, the SCU must execute upon the restrained property in order to satisfy in whole or in part the support arrears/past due support that caused the issuance of the restraining notice.

(i) If the levy is to be accomplished by service of the execution, a copy of the execution must be served upon the garnishee in the same manner as a summons, except that such service cannot 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 of the Civil Practice Law and Rules. In the event the garnishee is the State of New York, service must be made in the same manner as an income execution pursuant to section 5231 of the Civil Practice Law and Rules. The execution must include such information as is required by section 5230 of the Civil Practice Law and Rules.

(ii) If the levy is to be accomplished by seizure, the SCU must execute upon the support obligor's interest in personal property capable of delivery by taking the property into custody without interfering with the lawful possession of pledgees and lessees. The SCU must immediately serve a copy of the execution in the manner prescribed in subparagraph (i) of this paragraph upon the person from whose possession or custody the property was taken.

(8) Effect of execution by service.

(i) The person upon whom the execution is served must immediately transfer all such property, and pay all such debts upon maturity, to the SCU and must execute any document necessary to effect the transfer or payment. After such transfer or payment, property which comes into the possession or custody of such person, or debt incurred by such person, is not subject to the execution. Until such transfer or payment is made, or until the expiration of 90 days after service of the execution, the person served must not allow or undertake the sale, assignment, or transfer of, or interference with, the property which is the subject of the restraining notice, other than to the SCU, except pursuant to court order or the direction of the SCU. At the expiration of 90 days after service of the execution, or at such further time as may be directed by a court upon motion by the SCU, the execution is void except as to such property or debts which have been transferred to the SCU or paid to the SCU. If the property or debts which have been transferred or paid to the SCU do not fully satisfy the support arrears/past due support which gave rise to the restraining notice, the SCU must record the amount of the judgment or order unpaid at the time of the return in accordance with subdivision (f) of this section.

(ii) An SCU which has specified personal property or debt to be levied upon in a notice served with an execution is liable to the owner of the property or the person to whom the debt is owed, if other than the support obligor, for any damages sustained by reason of the levy.

(9) Service of notice of the execution on the support obligor. Where an execution does not state that a notice in the form prescribed in paragraph (4) of this subdivision has been served upon the support obligor within a year, the SCU must send by first class mail or personally deliver to the support obligor a copy of the execution together with such notice no later than four days after service of the execution upon any garnishee. The SCU must specify on the notice to the support obligor the name and address of the SCU. The notice must be mailed by first class mail to the support obligor at his or her residential address. If the notice is returned as undeliverable, or if the support obligor's residential address is unknown, then the notice must be sent by first class mail to the support obligor's place of employment, if known, in an envelope marked "personal and confidential" and not indicating that the communication concerns a debt. If neither the support obligor's residential address nor place of employment is known, then the notice must be sent by first class mail to any other known address.

(e) Mistake of fact.

(1) Where the SCU has issued notice to a support obligor pursuant to paragraph (d)(4) of this section, the support obligor may assert a mistake of fact by making a written submission to the SCU within 15 days from the date upon which such notice was served upon the support obligor. Such written submission may include such documentary evidence as the support obligor believes may support his or her assertion.

(i) Defenses which may be asserted by the support obligor include, but are not limited to, claims that:

(a) the person identified as the owner of the property is not the support obligor who owes the support arrears/past due support;

(b) the court order or judgment which gave rise to the support arrears/past due support does not exist or has been vacated; or

(c) the amount claimed by the SCU to be owed is incorrect because a payment which was made was not credited or the amount of support arrears/past due support was not computed accurately.

(2) If a support obligor asserts a mistake of fact pursuant to this subdivision, the SCU must determine the merits of the assertion and notify the support obligor of its determination within 45 days from the date upon which notice was served upon the support obligor pursuant to paragraph (d)(4) of this section.

(3) If a support obligor asserts a mistake of fact pursuant to this section, and the SCU determines that the assertion is without merit, the support obligor also must be notified that the execution will be served on the garnishee and of the time at which the execution will take place.

(f) Records of the SCU. Each SCU must keep a record of executions which have been administered pursuant to this section. Such records must include the names of the parties and the support obligor; the dates of issue and return; the date and time of delivery of the levied property; the amount due at the time the execution was delivered; the amount due at the time the execution was delivered; the amount of the support arrears/past due support which were satisfied; and the amount of the judgment or order unpaid at the time of the return.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 346.11