senate Bill S7141

2013-2014 Legislative Session

Relates to payment or delivery of property of judgment debtor

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

do you support this bill?

Actions

view actions (5)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
May 12, 2014 advanced to third reading
May 07, 2014 2nd report cal.
May 06, 2014 1st report cal.523
Apr 30, 2014 referred to judiciary

Votes

view votes

May 6, 2014 - Judiciary committee Vote

S7141
23
0
committee
23
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Judiciary committee vote details

S7141 - Bill Details

See Assembly Version of this Bill:
A9356
Current Committee:
Senate Rules
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §5225, CPLR

S7141 - Bill Texts

view summary

Relates to payment or delivery of property of judgment debtor.

view sponsor memo
BILL NUMBER:S7141

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to payment or delivery of property of judgment debtor

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

CPLR 5225(a) provides that a judgment creditor can seek satisfaction
of a judgment by moving against the judgment debtor for an order
requiring him or her to deliver to the sheriff any money or personal
property in which he or she has an interest if he or she is "in
possession or custody" of that property. Similarly, CPLR 5225(b)
allows the judgment creditor to commence a special proceeding against
another person "in possession or custody of money or other personal
property in which the judgment debtor has an interest, or against a
person who is a transferee of money or other personal property from
the judgment debtor, where it is shown that the judgment debtor is
entitled to the possession of such property or that the judgment
creditor's rights to the property are superior to those of the
transferee." CPLR 5225(b) (italics supplied).

This measure would amend CPLR 5225(a) and (b) to facilitate the
ability of a judgment creditor to seek the delivery of property in the
possession of a person outside the court's jurisdiction by exercising
jurisdiction over the judgment debtor or another person within the
court's jurisdiction who may "control" the person with possession. The
issue can arise in a number of contexts, including a situation where a
garnishee's agent, such as an attorney, holds the property. The
property is under the garnishee-client's "control," but arguably not
in that client's "possession or custody."

This amendment also may come into play in a parent/subsidiary
situation, as it did in the recent decision of the Court of Appeals in
Commonwealth of the N. Mariana Islands v. Canadian Imperial Bank of
Commerce, 21 N.Y.3d 55 (2013) ("Mariana"). In Mariana, the Court
addressed whether a judgment creditor can obtain an Article 52
turnover order against a bank to garnish assets held by the bank's
foreign subsidiary. Mariana, 21 N.Y.3d at 57. The plaintiff
Commonwealth of the Northern Mariana Islands had obtained two separate
tax judgments against two individuals, the Millards, who resided in
the Commonwealth. Id. at 58. The Commonwealth registered the tax
judgments in the United States District Court for the Southern
District of New York and commenced proceedings as a judgment creditor
pursuant to Fed. R. Civ. P. 69(a) and CPLR 5225(b), seeking a turnover
order against the Millards. Id. The Commonwealth named a bank, CIBC,
as a garnishee on the basis that the Millards maintained accounts in
92%-owned foreign subsidiaries of CIBC. Id.

In Mariana, the Court of Appeals observed that, "... legislative use
of the phrase 'possession or custody' contemplates actual possession.
Notably, sections of the CPLR pertaining to the disposition of
property utilize the narrower 'possession or custody' standard." Id.
at 63 (emphasis added). The Court contrasted this with the
"possession, custody or control" standard which "has been construed to
encompass constructive possession." Id. As a result, the Court held


that, "... for a court to issue a postjudgment turnover order pursuant
to CPLR 5225(b) against a banking entity, that entity itself must have
actual, not merely constructive, possession or custody of the assets
sought ... (I)t is not enough that the banking entity's subsidiary
might have possession or custody of a judgment debtor's assets." Id.
at 57-58.

CPLR 5225(b), when enacted, represented a change from the predecessor
provision in the Civil Practice Act. As discussed in Mariana, Civil
Practice Act § 796 provided for turnover of property in the
"possession" or "control" of another person. Id. at 61. CPLR 5225(b),
on the other hand, employs the "possession or custody" language, and
omits the word "control." Id. In interpreting the statute, the Court
reasoned that the omission was intentional, because "(w)hen the
legislature has sought to encompass the concept of 'control' it has
done so explicitly ...." Id. at 62.

By way of contrast, in other sections of the CPLR, such as disclosure
provisions, the concept of "control" is included. See CPLR 3111
(requiring production at deposition of books, papers, and other items
in "the possession, custody or control" of the person to be examined);
see also CPLR 3120(1)(i) (requiring discovery or inspection of
documents "in the possession, custody or control" of the party served
with a subpoena). Although the issue has not been resolved at the
appellate level, "control" has been interpreted by one trial court to
mean that discovery can be obtained from a wholly-owned subsidiary,
wherever located, of a parent that is a party to the case, because the
parent has control over the wholly-owned subsidiary. See Bank of
Tokyo-Mitsubishi, Ltd. v. Kvaerner, 175 Misc. 2d 408 (Sup. Ct. N.Y.
Co., 1998). We express no view as to whether, in the context of a
parent/subsidiary or other relationship, the requisite "control"
should be found; that is a matter for judicial development and
determination in particular cases, nor are we expressing any view as
to whether the word "control" as used in the context of CPLR 5225
necessarily should be construed in the same manner as it may be
construed in the context of CPLR Article 31.

This measure would add "control" to CPLR 5225(a) and (b), thus
restoring the standard reflected in the prior Civil Practice Act and
the Code of Civil Procedure before it (§ 2447). It would facilitate
the efforts of judgment creditors to satisfy judgments by reaching
assets held by persons or entities under the control of garnishees.
Our Committee considered whether to add the "control" language to
other garnishment and attachment provisions but declined to do so.
The Civil Practice Act appropriately limited the control standard to
the context of judicially supervised adversarial hearings.

This measure, which would have no fiscal impact on the public
treasury, would take effect on January first following the date on
which it becomes law.

Legislative History:

None. New Proposal.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7141

                            I N  S E N A T E

                             April 30, 2014
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- 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 payment
  or delivery of property of judgment debtor

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

  Section 1. Subdivisions (a) and (b) of section 5225 of the civil prac-
tice law and rules, subdivision (b) as amended by  chapter  388  of  the
laws  of  1964 and such section as renumbered by chapter 315 of the laws
of 1962, are amended to read as follows:
  (a) Property in the possession of judgment debtor. Upon motion of  the
judgment creditor, upon notice to the judgment debtor, where it is shown
that  the  judgment  debtor is in possession [or], custody OR CONTROL of
money or other personal property in which he OR SHE has an interest, the
court shall order that the judgment debtor pay the money, or so much  of
it  as  is  sufficient to satisfy the judgment, to the judgment creditor
and, if the amount to be so paid is insufficient to  satisfy  the  judg-
ment,  to deliver any other personal property, or so much of it as is of
sufficient value to satisfy  the  judgment,  to  a  designated  sheriff.
Notice  of the motion shall be served on the judgment debtor in the same
manner as a summons or by registered or certified mail,  return  receipt
requested.
  (b)  Property not in the possession of judgment debtor. Upon a special
proceeding commenced by the  judgment  creditor,  against  a  person  in
possession  [or], custody OR CONTROL of money or other personal property
in which the judgment debtor has an interest, or against a person who is
a transferee of money or  other  personal  property  from  the  judgment
debtor,  where  it  is shown that the judgment debtor is entitled to the
possession of such property or that the judgment  creditor's  rights  to
the  property  are  superior to those of the transferee, the court shall
require such person to pay the money, or so much of it as is  sufficient
to  satisfy the judgment, to the judgment creditor and, if the amount to
be so paid is insufficient to satisfy the judgment, to deliver any other

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13637-01-4

S. 7141                             2

personal property, or so much of it as is of sufficient value to satisfy
the judgment, to a designated sheriff. Costs of the proceeding shall not
be awarded against a person who did not dispute  the  judgment  debtor's
interest  or right to possession. Notice of the proceeding shall also be
served upon the judgment debtor in the same manner as a  summons  or  by
registered  or  certified  mail, return receipt requested. The court may
permit the judgment debtor to intervene in the proceeding. The court may
permit any adverse claimant to  intervene  in  the  proceeding  and  may
determine  his  OR  HER  rights  in accordance with section 5239 OF THIS
ARTICLE.
  S 2. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.