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S07034 Summary:

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S07034 Floor Votes:

S07034 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7034--A
 
                    IN SENATE
 
                                      March 9, 2010
                                       ___________
 
        Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
          when printed to be committed to the Committee on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN  ACT  to  amend  the  civil  practice  law  and rules, in relation to
          increasing the property values which are exempt from the  satisfaction

          of  a  money  judgment;  and  to amend the debtor and creditor law, in
          relation to increasing the exemptions in bankruptcy
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision (a) of section 5205 of the civil practice law
     2  and rules, the opening paragraph as amended by chapter 129 of  the  laws
     3  of  1976  and paragraph 5 as amended by chapter 697 of the laws of 1976,
     4  is amended to read as follows:
     5    (a) Exemption for personal property. The following  personal  property
     6  when  owned by any person is exempt from application to the satisfaction
     7  of a money judgment except where the judgment is for the purchase  price
     8  of  the  exempt property or was recovered by a domestic, laboring person
     9  or mechanic for work performed by that person in such capacity:

    10    1. all stoves and home heating equipment kept for use in the  judgment
    11  debtor's  dwelling  house  and  necessary  fuel therefor for [sixty] one
    12  hundred twenty days; one sewing machine with its appurtenances;
    13    2. [the family bible] religious texts, family pictures and  portraits,
    14  and school books used by the judgment debtor or in the family; and other
    15  books,  not  exceeding  [fifty]  five hundred dollars in value, kept and
    16  used as part of the family or judgment debtor's library;
    17    3. a seat or pew occupied by the judgment debtor or the  family  in  a
    18  place of public worship;
    19    4.  domestic  animals  with  the  necessary food for those animals for
    20  [sixty] one hundred twenty days, provided that the total value  of  such

    21  animals  and  food  does  not  exceed  [four hundred fifty] one thousand
    22  dollars; all necessary food actually provided for the use of  the  judg-
    23  ment debtor or his family for [sixty] one hundred twenty days;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11373-06-0
        S. 7034--A                          2
 
     1    5.  all  wearing  apparel, household furniture, one mechanical, gas or
     2  electric refrigerator, one  radio  receiver,  one  television  set,  one
     3  computer  and  associated  equipment, one cellphone, crockery, tableware
     4  and cooking utensils necessary for the judgment debtor and  the  family;

     5  all prescribed health aids;
     6    6.  a  wedding  ring;  a watch, jewelry and art not exceeding [thirty-
     7  five] one thousand dollars in value; [and]
     8    7. tools of trade, necessary working tools and  implements,  including
     9  those  of  a  mechanic,  farm machinery, team, professional instruments,
    10  furniture and  library,  not  exceeding  [six  hundred]  three  thousand
    11  dollars  in  value,  together  with  the necessary food for the team for
    12  [sixty] one hundred twenty days, provided, however,  that  the  articles
    13  specified  in  this  paragraph  are  necessary to the carrying on of the
    14  judgment debtor's profession or calling[.];
    15    8. one motor vehicle not exceeding  four  thousand  dollars  in  value

    16  above  liens  and  encumbrances  of the debtor; if such vehicle has been
    17  equipped for use by a disabled debtor,  then  ten  thousand  dollars  in
    18  value  above  liens  and  encumbrances of the debtor; provided, however,
    19  that this exemption for one motor vehicle shall not apply  if  the  debt
    20  enforced  is for child support, spousal support, maintenance, alimony or
    21  equitable distribution; and
    22    9. if no homestead exemption is claimed, then one thousand dollars  in
    23  personal property, bank account or cash.
    24    §  2.  Section 5206 of the civil practice law and rules, as amended by
    25  chapter 181 of the laws of  1977,  subdivisions  (a),  (d)  and  (e)  as
    26  amended  by  chapter  623  of  the  laws  of 2005, is amended to read as
    27  follows:

    28    § 5206. Real property exempt from application to the  satisfaction  of
    29  money  judgments.  (a)  Exemption  of  homestead. Property of one of the
    30  following types, not exceeding one hundred fifty  thousand  dollars  for
    31  the  counties  of  Kings,  Queens,  New  York,  Bronx, Richmond, Nassau,
    32  Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five thou-
    33  sand dollars for the counties of  Dutchess,  Albany,  Columbia,  Orange,
    34  Saratoga and Ulster; and seventy-five thousand dollars for the remaining
    35  counties  of  the state in value above liens and encumbrances, owned and
    36  occupied as a principal residence, is exempt  from  application  to  the
    37  satisfaction  of  a  money  judgment,  unless the judgment was recovered
    38  wholly for the purchase price thereof:

    39    1. a lot of land with a dwelling thereon,
    40    2. shares of stock in a cooperative apartment corporation,
    41    3. units of a condominium apartment, or
    42    4. a mobile home.
    43    But no exempt homestead shall be exempt from taxation or from sale for
    44  non-payment of taxes or assessments.
    45    (b) Homestead exemption after owner's death. The  homestead  exemption
    46  continues  after the death of the person in whose favor the property was
    47  exempted for the benefit of the surviving spouse and surviving  children
    48  until  the  majority of the youngest surviving child and until the death
    49  of the surviving spouse.
    50    (c) Suspension of occupation as  affecting  homestead.  The  homestead
    51  exemption ceases if the property ceases to be occupied as a residence by
    52  a  person for whose benefit it may so continue, except where the suspen-

    53  sion of occupation is for a period not exceeding one year, and occurs in
    54  consequence of injury to, or destruction of, the dwelling house upon the
    55  premises.
        S. 7034--A                          3
 
     1    (d) Exemption  of  homestead  exceeding  one  hundred  fifty  thousand
     2  dollars  in  value  for  the counties of Kings, Queens, New York, Bronx,
     3  Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred
     4  twenty-five thousand dollars  for  the  counties  of  Dutchess,  Albany,
     5  Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars
     6  for  the  remaining counties of the state.  The exemption of a homestead
     7  is not void because the value of the property exceeds one hundred  fifty

     8  thousand  dollars  for  the  counties of Kings, Queens, New York, Bronx,
     9  Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred
    10  twenty-five thousand dollars  for  the  counties  of  Dutchess,  Albany,
    11  Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars
    12  for  the  remaining  counties  of  the  state but the lien of a judgment
    13  attaches to the surplus.
    14    (e) Sale of homestead exceeding one hundred fifty thousand dollars for
    15  the counties of  Kings,  Queens,  New  York,  Bronx,  Richmond,  Nassau,
    16  Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five thou-
    17  sand  dollars  for  the  counties of Dutchess, Albany, Columbia, Orange,
    18  Saratoga and Ulster; and seventy-five thousand dollars for the remaining

    19  counties of the state in value.  A  judgment  creditor  may  commence  a
    20  special  proceeding  in  the  county  in  which the homestead is located
    21  against the judgment debtor for the sale, by a sheriff or receiver, of a
    22  homestead exceeding one hundred fifty thousand dollars for the  counties
    23  of  Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland,
    24  Westchester and Putnam; one hundred twenty-five thousand dollars for the
    25  counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster; and
    26  seventy-five thousand dollars for the remaining counties of the state in
    27  value. The court may direct that the notice of petition be  served  upon
    28  any other person. The court, if it directs such a sale, shall so marshal
    29  the  proceeds  of the sale that the right and interest of each person in

    30  the proceeds shall correspond as nearly as  may  be  to  his  right  and
    31  interest  in  the  property sold. Money, not exceeding one hundred fifty
    32  thousand dollars for the counties of Kings,  Queens,  New  York,  Bronx,
    33  Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred
    34  twenty-five  thousand  dollars  for  the  counties  of Dutchess, Albany,
    35  Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars
    36  for the remaining counties of the state, paid to a judgment  debtor,  as
    37  representing  his interest in the proceeds, is exempt for one year after
    38  the payment, unless, before the expiration of the year, he  acquires  an
    39  exempt homestead, in which case, the exemption ceases with respect to so
    40  much of the money as was not expended for the purchase of that property;

    41  and  the  exemption  of  the  property so acquired extends to every debt
    42  against which the property sold was exempt. Where the exemption of prop-
    43  erty sold as prescribed in this subdivision has been continued after the
    44  judgment debtor's death, or where he dies  after  the  sale  and  before
    45  payment to him of his portion of the proceeds of the sale, the court may
    46  direct  that  portion  of  the proceeds which represents his interest be
    47  invested for the benefit of the person or persons entitled to the  bene-
    48  fit of the exemption, or be otherwise disposed of as justice requires.
    49    (f)  Exemption  of  burying  ground.  Land,  set  apart as a family or
    50  private burying ground, is exempt from application to  the  satisfaction
    51  of a money judgment, upon the following conditions only:
    52    1. a portion of it must have been actually used for that purpose;

    53    2. it must not exceed in extent one-fourth of an acre; and
    54    3.  it  must not contain any building or structure, except one or more
    55  vaults or other places of deposit for the dead, or mortuary monuments.
        S. 7034--A                          4
 
     1    § 3. Subdivision 1 of section 282 of the debtor and creditor  law,  as
     2  added by chapter 540 of the laws of 1982, is amended to read as follows:
     3    1.  Bankruptcy  exemption  of  a  motor vehicle. One motor vehicle not
     4  exceeding [twenty-four hundred] four thousand  dollars  in  value  above
     5  liens and encumbrances of the debtor; provided, however, if such vehicle
     6  has  been  equipped  for  use  by  a  disabled debtor, then ten thousand
     7  dollars in value above liens and encumbrances of the debtor.

     8    § 4. Section 283 of the debtor and creditor law, as added  by  chapter
     9  540 of the laws of 1982, is amended to read as follows:
    10    § 283. Aggregate individual bankruptcy exemption for certain annuities
    11  and  personal property. 1. General application. The aggregate amount the
    12  debtor may exempt from the property of the estate for personal  property
    13  exempt  from  application  to the satisfaction of a money judgment under
    14  subdivision (a) of section fifty-two hundred five of the civil  practice
    15  law and rules and for benefits, rights, privileges, and options of annu-
    16  ity  contracts  described  in  the  following  sentence shall not exceed
    17  [five] ten thousand dollars. Annuity contracts subject to the  foregoing
    18  limitation  are  those  that  are: (a) initially purchased by the debtor
    19  within six months of the debtor's filing a petition in  bankruptcy,  (b)

    20  not  described in any paragraph of section eight hundred five (d) of the
    21  Internal Revenue Code  of  nineteen  hundred  fifty-four,  and  (c)  not
    22  purchased by application of proceeds under settlement options of annuity
    23  contracts  purchased  more  than six months before the debtor's filing a
    24  petition in bankruptcy or under settlement  options  of  life  insurance
    25  policies.
    26    2.   Contingent   alternative  bankruptcy  exemption.  Notwithstanding
    27  section two hundred eighty-two of this article, a debtor, who  (a)  does
    28  not  elect,  claim, or otherwise avail himself of an exemption described
    29  in section fifty-two hundred six of the civil practice  law  and  rules;
    30  (b)  utilizes  to the fullest extent permitted by law as applied to said
    31  debtor's property, the exemptions referred to in subdivision one of this

    32  section which are subject to the [five] ten  thousand  dollar  aggregate
    33  limit;  and  (c) does not reach such aggregate limit, may exempt cash in
    34  the amount by which [five] ten thousand dollars exceeds the aggregate of
    35  his or her exemptions referred to in subdivision one of this section  or
    36  in  the  amount of [two] five thousand [five hundred] dollars, whichever
    37  amount is less. For purposes of this subdivision, cash means currency of
    38  the United States at face value, savings bonds of the United  States  at
    39  face  value,  the  right to receive a refund of federal, state and local
    40  income taxes, and deposit accounts in any state or  federally  chartered
    41  depository institution.
    42    §  5.  The  debtor and creditor law is amended by adding a new section
    43  285 to read as follows:

    44    § 285. Alternative federal exemptions. Notwithstanding any  inconsist-
    45  ent  provision of law, an individual debtor may opt to exempt from prop-
    46  erty of the estate such property as is permitted to be exempted pursuant
    47  to section five hundred twenty-two of title eleven of the United  States
    48  Code in lieu of such property as is permitted to be exempted pursuant to
    49  the applicable provisions of this article.
    50    §  6.  The  civil  practice  law  and rules is amended by adding a new
    51  section 5253 to read as follows:
    52    § 5253. Cost of living  adjustment  for  personal  and  real  property
    53  exempt  from  application  to  the  satisfaction  of money judgments and
    54  exemptions in bankruptcy. (a) Beginning on  April  first,  two  thousand

    55  twelve,  and at each three-year interval ending on April first thereaft-
    56  er, the dollar amount of the exemption provided  in  sections  fifty-two
        S. 7034--A                          5
 
     1  hundred  five and fifty-two hundred six of this article and sections two
     2  hundred eighty-two and two hundred eighty-three of the debtor and credi-
     3  tor law shall be  adjusted  as  provided  in  subdivision  (b)  of  this
     4  section.
     5    (b)  The  superintendent  of  banks  shall determine the amount of the
     6  adjustment based on the change in the consumer price index for all urban
     7  consumers,  New  York-Northern  New  Jersey-Long  Island,   NY-NJ-CT-PA,
     8  published  by  the U.S. department of labor, bureau of labor statistics,

     9  for the most recent three-year period ending  on  December  thirty-first
    10  preceding the adjustment, with each adjusted amount rounded to the near-
    11  est twenty-five dollars.
    12    (c)  Beginning on April first, two thousand twelve, and at each three-
    13  year interval ending on April first thereafter,  the  superintendent  of
    14  banks  shall  publish  the  current  dollar  amount  of  the  applicable
    15  exemption provided in this article, together with the date of  the  next
    16  scheduled adjustment. The publication shall be substantially in the form
    17  set forth below:
    18    "Current  dollar amount of exemption from application to the satisfac-
    19  tion of money judgments under New York  civil  practice  law  and  rules

    20  sections  5205  and  5206  and exemptions in bankruptcy under debtor and
    21  creditor law sections 282 and 283:
    22    The following is the current dollar  amount  of  exemptions  from  the
    23  satisfaction  of  money  judgments  under  civil  practice law and rules
    24  sections 5205 and 5206 and under debtor and creditor  law  sections  282
    25  and 283:
    26    (amount)
    27    This  amount  is  effective  on April 1, (year) and shall not apply to
    28  cases commenced before April 1, (year). The next adjustment is scheduled
    29  for April 1, (year). Such adjustments shall not apply  with  respect  to
    30  restraining notices served or executions effected before the date of the
    31  adjustment.  Nothing  in  this  section  limits  the  judgment  debtor's

    32  exemption rights in this section or under any other law."
    33    § 7. This act shall take effect on the thirtieth day  after  it  shall
    34  have become a law and shall apply to the satisfaction of judgments on or
    35  after such date.