Bill Text: NY A03104 | 2017-2018 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2017-01-26 - referred to codes [A03104 Detail]
Download: New_York-2017-A03104-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3104 2017-2018 Regular Sessions IN ASSEMBLY January 26, 2017 ___________ 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. LBD04653-01-7A. 3104 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 270 of the laws of 2013, 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 issuer 34 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, the opening paragraph and subparagraph (ii) as 43 amended by chapter 270 of the laws of 2013, are amended to read as 44 follows: 45 Execution for support, restitution or reparation enforcement; form. 46 The income execution shall be on the form for income withholding 47 promulgated by the office of temporary and disability assistance for 48 this purpose and shall include the necessary information and directions 49 to ensure its characterization as an income withholding notice as 50 described and required by subsection (b) of section six hundred sixty- 51 six of title forty-two of the United States Code; provided, however, 52 that where the court enters an order for spousal support, restitution or 53 reparation only for which income withholding will be ordered by the 54 sheriff, the clerk of court or the attorney for the creditor, an alter- 55 nate [spousal support] form for income withholding promulgated by the 56 office of temporary and disability assistance may be used but is notA. 3104 3 1 required. In addition, the income execution shall specify the court in 2 which it was entered, the amount of the periodic payments directed, and 3 the names of the debtor and creditor. In addition, to the extent not 4 already provided on the form for income withholding, a separate document 5 shall be served with the income execution which shall include: 6 (ii) the amount of the deductions to be made therefrom on account of 7 current support, restitution or reparation and the amount to be applied 8 to the reduction of arrears; 9 § 8. Subdivision (e) of section 5241 of the civil practice law and 10 rules, as amended by chapter 94 of the laws of 2008, is amended to read 11 as follows: 12 (e) Determination of mistake of fact. Where the execution has been 13 issued by the support collection unit, the debtor may assert a mistake 14 of fact and shall have an opportunity to make a submission in support of 15 the objection within fifteen days from service of a copy thereof. Ther- 16 eafter, the agency shall determine the merits of the objection, and 17 shall notify the debtor of its determination within forty-five days 18 after notice to the debtor as provided in subdivision (d) of this 19 section. If the objection is disallowed, the debtor shall be notified 20 that the income execution will be served on the employer or income 21 payor, and of the time that deductions will begin. Where the income 22 execution has been issued by an attorney as officer of the court, or by 23 the sheriff, or by the clerk of the court, the debtor may assert a 24 mistake of fact within fifteen days from service of a copy thereof by 25 application to the supreme court or to the family court having jurisdic- 26 tion in accordance with section four hundred sixty-one of the family 27 court act. If application is made to the family court, such application 28 shall be by petition on notice to the creditor and it shall be heard and 29 determined in accordance with the provisions of section four hundred 30 thirty-nine of the family court act, and a determination thereof shall 31 be made, and the debtor notified thereof within forty-five days of the 32 application. If application is made to the supreme court such applica- 33 tion shall be by order to show cause or motion on notice to the creditor 34 in the action in which the order or judgement sought to be enforced was 35 entered and a determination thereof shall be made, and the debtor noti- 36 fied thereof within forty-five days of the application. Where the 37 income execution has been issued by an attorney as officer of the court, 38 or by the sheriff, or by the clerk of the court to enforce an order of 39 restitution or reparation, the debtor may assert a mistake of fact with- 40 in fifteen days from service of a copy thereof by application to the 41 supreme court having issued such order. Such application shall be by 42 petition on notice to the creditor, and it shall be heard and determined 43 in accordance with the provisions of article four of this chapter, and a 44 determination thereof shall be made, and the debtor notified thereof 45 within forty-five days of the application. 46 § 9. The opening paragraph of paragraph 1 of subdivision (g) of 47 section 5241 of the civil practice law and rules, as amended by chapter 48 270 of the laws of 2013, is amended to read as follows: 49 An employer or income payor served with an income execution shall 50 commence deductions from income due or thereafter due to the debtor no 51 later than the first pay period that occurs fourteen days after service 52 of the execution, and shall remit payments within seven business days of 53 the date that the debtor is paid. Each payment remitted by an employer 54 or income payor shall include the information as instructed on the 55 income execution and shall be payable to and remitted to the state 56 disbursement unit established in this state in accordance with sectionA. 3104 4 1 six hundred fifty-four-b of title forty-two of the United States Code 2 unless the income execution is for spousal support only, in which case 3 the payments shall be payable to and remitted to the creditor. If the 4 money due to the debtor consists of salary or wages and his or her 5 employment is terminated by resignation or dismissal at any time after 6 service of the execution, the levy shall thereafter be ineffective, and 7 the execution shall be returned, unless the debtor is reinstated or 8 re-employed within ninety days after such termination. An employer must 9 notify the issuer promptly when the debtor terminates employment and 10 provide the debtor's last address and name and address of the new 11 employer, if known. An income payor must notify the issuer promptly when 12 the debtor no longer receives income and must provide the debtor's last 13 address and the name and address of the debtor's new employer, if known. 14 Where the income is compensation paid or payable to the debtor for 15 personal services, the amount of the deductions to be withheld for 16 support enforcement shall not exceed the following: 17 § 10. Subdivision (g) of section 5241 of the civil practice law and 18 rules is amended by adding a new paragraph 5 to read as follows: 19 (5) Where the income is compensation paid or payable to the debtor for 20 personal services, the amount of the deductions to be withheld for 21 restitution or reparation shall not exceed fifty percent of the earnings 22 of the debtor remaining after the deduction therefrom of any amounts 23 required by law to be withheld ("disposable earnings"). 24 § 11. The section heading and subdivisions (a) and (b) of section 5242 25 of the civil practice law and rules, as amended by chapter 170 of the 26 laws of 1994, are amended to read as follows: 27 Income deduction order for support, restitution or reparation enforce- 28 ment. (a) Upon application of a creditor, for good cause shown, and 29 upon such terms as justice may require, the court may correct any 30 defect, irregularity, error or omission in an income execution for 31 support, restitution or reparation enforcement issued pursuant to 32 section [5241] fifty-two hundred forty-one of this article. 33 (b) Upon application of a creditor, for good cause shown, the court 34 may enter an income deduction order for support, restitution or repara- 35 tion enforcement. In determining good cause, the court may take into 36 consideration evidence of the degree of such debtor's past financial 37 responsibility, credit references, credit history, and any other matter 38 the court considers relevant in determining the likelihood of payment in 39 accordance with the order of support, restitution or reparation. Proof 40 of default establishes a prima facie case against the debtor, which can 41 be overcome only by proof of the debtor's inability to make the 42 payments. Unless the prima facie case is overcome, the court shall 43 enter an income deduction order for support, restitution or reparation 44 enforcement pursuant to this section. 45 § 12. Subdivision (g) of section 5242 of the civil practice law and 46 rules, as amended by chapter 270 of the laws of 2013, is amended to read 47 as follows: 48 (g) An order pursuant to this section shall take priority over any 49 other assignment, levy or process. If an employer or income payor is 50 served with more than one income deduction order for restitution 51 enforcement, reparation enforcement or support enforcement pertaining to 52 a single employee pursuant to this section, or with an order issued 53 pursuant to this section and also an execution pursuant to section 54 [5241] fifty-two hundred forty-one of this article, and if the combined 55 total amount of the income to be withheld exceeds the limits set forth 56 in subdivision (f) of this section, the employer or income payor shallA. 3104 5 1 withhold the maximum amount permitted thereby and pay to each creditor 2 that proportion thereof which such creditor's claim bears to the 3 combined total. 4 § 13. This act shall take effect on the one hundred twentieth day 5 after it shall have become a law, except that any guidelines necessary 6 for the timely implementation of this act on its effective date shall be 7 established on or before such date.
