A05753 Summary:

BILL NOA05753
 
SAME ASNo same as
 
SPONSORMcKevitt (MS)
 
COSPNSRGraf, Montesano, Kolb
 
MLTSPNSR
 
Amd S420.10, CP L; amd SS5241 & 5242, CPLR
 
Authorizes the enforcement of orders of restitution and reparation by allowing designated collection agencies, with court approval, to institute civil actions, and permits income execution collection of debtor's wages directly from employer; additionally, authorizes enforcement measures identical to those used for support award enforcement; increases up to fifty percent the amount that may be withheld from wages.
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A05753 Actions:

BILL NOA05753
 
03/06/2013referred to codes
04/30/2013held for consideration in codes
01/08/2014referred to codes
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A05753 Floor Votes:

There are no votes for this bill in this legislative session.
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A05753 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5753
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 6, 2013
                                       ___________
 
        Introduced  by M. of A. McKEVITT, GRAF, MONTESANO, KOLB -- read once and
          referred to the Committee on Codes
 
        AN ACT to amend the criminal procedure law and the  civil  practice  law
          and  rules, in relation to the enforcement of orders of restitution or
          reparation
 
          The People of the State of New York, represented in Senate and  Assem-

        bly, do enact as follows:
 
     1    Section  1.  Paragraph  (b)  of subdivision 6 of section 420.10 of the
     2  criminal procedure law, as amended by chapter 618 of the laws  of  1992,
     3  is amended to read as follows:
     4    (b)  The  district  attorney  may, in his or her discretion, and must,
     5  upon order of the court, institute proceedings  to  collect  such  fine,
     6  restitution  or  reparation including, but not limited to, the retention
     7  of a collection agency previously approved by the  court  in  accordance
     8  with the guidelines established by the office of court administration.
     9    §  2. Subdivision 6 of section 420.10 of the criminal procedure law is
    10  amended by adding a new paragraph (c) to read as follows:
    11    (c) The court may make an income deduction order  for  restitution  or

    12  reparation  enforcement under section fifty-two hundred forty-two of the
    13  civil practice law and rules.
    14    § 3. The section heading of section 5241 of the civil practice law and
    15  rules, as added by chapter 809 of the laws of 1985, is amended  to  read
    16  as follows:
    17    Income execution for support, restitution or reparation enforcement.
    18    §  4.  Subdivision  (a)  of section 5241 of the civil practice law and
    19  rules is amended by adding a new paragraph 1-a to read as follows:
    20    1-a. "Order of restitution or reparation" means any order of  a  court
    21  requiring,  as  part of a sentence imposed upon a person convicted of an
    22  offense, a defendant to make restitution of the fruits of his offense or
    23  reparation for the loss or damage caused thereby.
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09534-01-3

        A. 5753                             2
 
     1    § 5. Paragraphs 2, 3, 7 and 8 of subdivision (a) of  section  5241  of
     2  the civil practice law and rules, as added by chapter 809 of the laws of
     3  1985, are amended to read as follows:
     4    2.  "Debtor" means any person directed to make payments by an order of
     5  support, restitution or reparation.
     6    3. "Creditor" means  any  person  entitled  to  enforce  an  order  of
     7  support,  including a support collection unit or an order of restitution
     8  or reparation.
     9    7. "Default" means the failure of a debtor  to  remit  to  a  creditor

    10  three  payments  on the date due in the full amount directed by [the] an
    11  order of support, restitution  or  reparation  or  the  accumulation  of
    12  arrears  equal to or greater than the amount directed to be paid for one
    13  month, whichever first occurs.
    14    8. "Mistake of fact" means an error in the amount of current  support,
    15  restitution or reparation or arrears or in the identity of the debtor or
    16  that  the  order of support, restitution or reparation does not exist or
    17  has been vacated.
    18    § 6. Paragraph 1 of subdivision (b) of section 5241 of the civil prac-
    19  tice law and rules, as amended by chapter 59 of the  laws  of  1993,  is
    20  amended to read as follows:
    21    (1)  When a debtor is in default, an execution for support enforcement
    22  may be issued by the support collection unit, or  by  the  sheriff,  the

    23  clerk  of  court  or  the attorney for the creditor as an officer of the
    24  court.  When a debtor is in default, an  execution  for  restitution  or
    25  reparation  enforcement  may  be issued by the sheriff, the clerk of the
    26  court or the attorney for the creditor as an officer of the court. Where
    27  a  debtor  is  receiving  or  will  receive  income,  an  execution  for
    28  deductions  therefrom  in  amounts not to exceed the limits set forth in
    29  subdivision (g) of this section may be served upon an employer or income
    30  payor after notice to the debtor. The amount of  the  deductions  to  be
    31  withheld  shall be sufficient to ensure compliance with the direction in
    32  the order of support, restitution or reparation  and  shall  include  an
    33  additional  amount to be applied to the reduction of arrears. The credi-

    34  tor may amend the execution before or after service upon the employer or
    35  income payor to reflect additional  arrears  or  payments  made  by  the
    36  debtor  after  notice pursuant to subdivision (d) of this section, or to
    37  conform the execution to the  facts  found  upon  a  determination  made
    38  pursuant to subdivision (e) of this section.
    39    §  7.  The subdivision heading, the opening paragraph and subparagraph
    40  (ii) of paragraph 1 of subdivision (c) of  section  5241  of  the  civil
    41  practice law and rules, the subdivision heading as amended by chapter 59
    42  of  the  laws of 1993 and the opening paragraph and subparagraph (ii) of
    43  paragraph 1 as amended by chapter 214 of the laws of 1998,  are  amended
    44  to read as follows:
    45    Execution for support, restitution or reparation enforcement; form.
    46    The  income  execution  shall  contain  the  caption  of  the order of

    47  support, restitution or reparation and specify the date that  the  order
    48  of support, restitution or reparation was entered, the court in which it
    49  was entered, the amount of the periodic payments directed, the amount of
    50  arrears, the nature of the default and the names of the debtor and cred-
    51  itor. In addition, the income execution shall include:
    52    (ii)  the  amount of the deductions to be made therefrom on account of
    53  current support, restitution or reparation and the amount to be  applied
    54  to the reduction of arrears;

        A. 5753                             3
 
     1    §  8.  Subdivision  (e)  of section 5241 of the civil practice law and
     2  rules, as amended by chapter 94 of the laws of 2008, is amended to  read
     3  as follows:
     4    (e)  Determination  of  mistake  of fact. Where the execution has been

     5  issued by the support collection unit, the debtor may assert  a  mistake
     6  of fact and shall have an opportunity to make a submission in support of
     7  the objection within fifteen days from service of a copy thereof.  Ther-
     8  eafter,  the  agency  shall  determine  the merits of the objection, and
     9  shall notify the debtor of  its  determination  within  forty-five  days
    10  after  notice  to  the  debtor  as  provided  in subdivision (d) of this
    11  section. If the objection is disallowed, the debtor  shall  be  notified
    12  that  the  income  execution  will  be  served on the employer or income
    13  payor, and of the time that deductions  will  begin.  Where  the  income
    14  execution  has been issued by an attorney as officer of the court, or by
    15  the sheriff, or by the clerk of the  court,  the  debtor  may  assert  a
    16  mistake  of  fact  within fifteen days from service of a copy thereof by

    17  application to the supreme court or to the family court having jurisdic-
    18  tion in accordance with section four hundred  sixty-one  of  the  family
    19  court  act. If application is made to the family court, such application
    20  shall be by petition on notice to the creditor and it shall be heard and
    21  determined in accordance with the provisions  of  section  four  hundred
    22  thirty-nine  of  the family court act, and a determination thereof shall
    23  be made, and the debtor notified thereof within forty-five days  of  the
    24  application.  If  application is made to the supreme court such applica-
    25  tion shall be by order to show cause or motion on notice to the creditor
    26  in the action in which the order or judgement sought to be enforced  was
    27  entered  and a determination thereof shall be made, and the debtor noti-
    28  fied thereof within forty-five days  of  the  application.    Where  the

    29  income execution has been issued by an attorney as officer of the court,
    30  or  by  the sheriff, or by the clerk of the court to enforce an order of
    31  restitution or reparation, the debtor may assert a mistake of fact with-
    32  in fifteen days from service of a copy thereof  by  application  to  the
    33  supreme  court  having  issued  such order. Such application shall be by
    34  petition on notice to the creditor and, it shall be heard and determined
    35  in accordance with the provisions of article four of this chapter, and a
    36  determination thereof shall be made, and  the  debtor  notified  thereof
    37  within forty-five days of the application.
    38    §  9.  The  opening  paragraph  of  paragraph  1 of subdivision (g) of
    39  section 5241 of the civil practice law and rules, as amended by  chapter

    40  398 of the laws of 1997, is amended to read as follows:
    41    An  employer  or  income  payor  served with an income execution shall
    42  commence deductions from income due or thereafter due to the  debtor  no
    43  later  than the first pay period that occurs fourteen days after service
    44  of the execution, and shall remit payments to the creditor within  seven
    45  business  days of the date that the debtor is paid.  Each payment remit-
    46  ted by an employer or income payor shall include,  in  addition  to  the
    47  identity  and  social security number of the debtor, the date and amount
    48  of each withholding of the debtor's income included in the payment.   If
    49  the  money  due to the debtor consists of salary or wages and his or her
    50  employment is terminated by resignation or dismissal at any  time  after
    51  service  of the execution, the levy shall thereafter be ineffective, and

    52  the execution shall be returned, unless  the  debtor  is  reinstated  or
    53  re-employed within ninety days after such termination.  An employer must
    54  notify  the  issuer  promptly  when the debtor terminates employment and
    55  provide the debtor's last address  and  name  and  address  of  the  new
    56  employer,  if known. Where the income is compensation paid or payable to

        A. 5753                             4
 
     1  the debtor for personal services, the amount of  the  deductions  to  be
     2  withheld for support enforcement shall not exceed the following:
     3    §  10.  Subdivision  (g) of section 5241 of the civil practice law and
     4  rules is amended by adding a new paragraph 5 to read as follows:
     5    (5) Where the income is compensation paid or payable to the debtor for

     6  personal services, the amount of  the  deductions  to  be  withheld  for
     7  restitution or reparation shall not exceed fifty percent of the earnings
     8  of  the  debtor  remaining  after the deduction therefrom of any amounts
     9  required by law to be withheld ("disposable earnings").
    10    § 11. The section heading and subdivisions (a) and (b) of section 5242
    11  of the civil practice law and rules, as amended by chapter  170  of  the
    12  laws of 1994, are amended to read as follows:
    13    Income deduction order for support, restitution or reparation enforce-
    14  ment.    (a)  Upon  application of a creditor, for good cause shown, and
    15  upon such terms as justice  may  require,  the  court  may  correct  any
    16  defect,  irregularity,  error  or  omission  in  an income execution for

    17  support,  restitution  or  reparation  enforcement  issued  pursuant  to
    18  section [5241] fifty-two hundred forty-one of this article.
    19    (b)  Upon  application  of a creditor, for good cause shown, the court
    20  may enter an income deduction order for support, restitution or  repara-
    21  tion  enforcement.    In determining good cause, the court may take into
    22  consideration evidence of the degree of  such  debtor's  past  financial
    23  responsibility,  credit references, credit history, and any other matter
    24  the court considers relevant in determining the likelihood of payment in
    25  accordance with the order of support, restitution or reparation.   Proof
    26  of  default establishes a prima facie case against the debtor, which can
    27  be overcome only  by  proof  of  the  debtor's  inability  to  make  the

    28  payments.    Unless  the  prima  facie case is overcome, the court shall
    29  enter an income deduction order for support, restitution  or  reparation
    30  enforcement pursuant to this section.
    31    §  12.  Subdivision  (g) of section 5242 of the civil practice law and
    32  rules, as amended by chapter 170 of the laws of 1994, is amended to read
    33  as follows:
    34    (g) Where the court issues an income deduction order  for  restitution
    35  enforcement,  reparation  enforcement  or support enforcement payable to
    36  the support collection unit, as defined in paragraph nine of subdivision
    37  (a) of section [5241] fifty-two hundred forty-one of this article,  each
    38  payment  remitted by an employer or income payor shall include, in addi-
    39  tion to the identity and social security number of the debtor, the  date

    40  and  amount  of  each withholding of the debtor's income included in the
    41  payment.
    42    § 13. This act shall take effect on  the  one  hundred  twentieth  day
    43  after  it  shall have become a law, except that any guidelines necessary
    44  for the timely implementation of this act on its effective date shall be
    45  established on or before such date.
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