senate Bill S4721

Relates to noncompliance of an employer or income payor with income execution orders

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 15 / Apr / 2011
    • REFERRED TO JUDICIARY
  • 04 / Jan / 2012
    • REFERRED TO JUDICIARY

Summary

Relates to noncompliance of an employer or income payor with income execution orders; allows child support unit to count each failure to remit payment as an instance of noncompliance.

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Bill Details

See Assembly Version of this Bill:
A7944
Versions:
S4721
Legislative Cycle:
2011-2012
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd ยง5241, CPLR

Sponsor Memo

BILL NUMBER:S4721

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to noncompliance
with an income execution order

PURPOSE OR GENERAL IDEA OF BILL:
This bill provides for notice to be served on the employer of a parent
who is directed to make child support payments by an order of support
("the debtor"). Notice shall be served each time the employer fails
to withhold the pre-determined amount from the paycheck of the debtor.
Following the receipt of each notice, the employer will be charged
with a penalty for failure to withhold.

SUMMARY OF PROVISIONS:
Section One amends paragraph 1 of subdivision (g) of section 5241 of
the civil practice law and rules, as amended by chapter 398 of the
laws of 1997, adding subsection (B) which requires an employer or
income payor who has been served with an income execution shall be
served with a notice of failure to withhold income from the debtor.
This notice will include the date payment was due, the date that the
notice was served, whether it was a first or subsequent offense and
the penalties owed.

Section Two provides that the penalties imposed by that section are
imposed and aggregated each time notice is given to the employer and
the employer fails to withhold the income from the debtor.

Section Three is the effective date.

JUSTIFICATION:
Income executions are a helpful tool in collecting delinquent child
support payments. An income execution requires the employer to
withhold payments from the debtor's paycheck. When an employer fails
to comply with the income execution, they are subject to a penalty of
$500 for the first instance and $1,000 for each subsequent instance.
The law as written fails to describe what constitutes an instance.
Without a statutory definition of what an ~instance" means in this
situation, courts could only hold the employer responsible for the
initial $500 penalty, even if their noncompliance spanned several pay
periods. This legislation establishes guidelines for what shall
constitute an instance by providing that the employer will be served
with a notice each time they do not withhold deductions and that each
time they are served with such a notice and do not comply, this shall
constitute an instance for the purposes of assessing penalties.

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.


view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4721

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 15, 2011
                               ___________

Introduced  by  Sen.  ZELDIN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to noncom-
  pliance with an income execution order

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph 1 of subdivision (g) of section 5241 of the civil
practice  law  and rules, as amended by chapter 398 of the laws of 1997,
is amended to read as follows:
  (1)(A) 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 to the creditor
within  seven  business  days  of the date that the debtor is paid. Each
payment remitted by an employer or income payor shall include, in  addi-
tion  to the identity and social security number of the debtor, the date
and amount of each withholding of the debtor's income  included  in  the
payment.  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 inef-
fective, and the execution shall be returned, unless the debtor is rein-
stated 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. 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 with-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10430-02-1

S. 4721                             2

held ("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 with-
held 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.
  (B) AN EMPLOYER OR INCOME PAYOR SERVED WITH AN INCOME EXECUTION  SHALL
BE  SERVED  A  NOTICE  BY  THE  CREDITOR  FOR  EACH  FAILURE TO WITHHOLD
DEDUCTIONS FROM INCOME DUE OR THEREAFTER DUE TO THE DEBTOR. SUCH  NOTICE
SHALL  STATE  THE  DATE  PAYMENT  WAS DUE UNDER SUBPARAGRAPH (A) OF THIS
PARAGRAPH, THE DATE ON WHICH SUCH NOTICE WAS SERVED, WHETHER SUCH NOTICE
CONCERNS A FIRST, OR SUBSEQUENT OFFENSE AND THE MONIES OWED IN  PENALTY.
IN   CALCULATING   THE  PENALTY  UNDER  THIS  SUBPARAGRAPH  THE  SUPPORT
COLLECTION UNIT SHALL USE THE PENALTIES DESCRIBED IN SUBPARAGRAPH (D) OF
PARAGRAPH TWO OF THIS SUBDIVISION AND SHALL AGGREGATE THE PENALTIES  FOR
EACH  INSTANCE  OF FAILURE TO WITHHOLD DEDUCTIONS OR TO REMIT PAYMENT TO
THE UNIT.
  S 2. Subparagraph (D) of paragraph 2 of  subdivision  (g)  of  section
5241  of  the civil practice and rules, as amended by chapter 335 of the
laws of 2006, is amended to read as follows:
  (D) In addition to the remedies herein provided and as may  be  other-
wise  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 subse-
quent  instances of employer or income payor noncompliance. UPON A FIND-
ING THAT THE CREDITOR HAS COMPLIED WITH THE NOTICE PROVISIONS OF SUBPAR-
AGRAPH (B) OF PARAGRAPH ONE OF THIS SUBDIVISION, THE COURT SHALL  IMPOSE
A  PENALTY AS DESCRIBED FOR EACH FAILURE TO WITHHOLD DEDUCTIONS OR REMIT
PAYMENT TO THE UNIT; PROVIDED THAT SUCH PENALTIES SHALL  NOT  ACCRUE  TO
THE  GOVERNMENT  OF  THE UNITED STATES OR THE GOVERNMENT OF THE STATE OF
NEW YORK OR ITS POLITICAL SUBDIVISIONS. 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.
  S 3. This act shall take effect immediately.

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