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MATTER FREEDOM FINANCE CO. v. JACK A. GISONDA (02/11/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1969.NY.40402 <http://www.versuslaw.com>; 298 N.Y.S.2d 177; 58 Misc. 2d 1004 February 11, 1969 IN THE MATTER OF FREEDOM FINANCE CO., INC., PETITIONER,v.JACK A. GISONDA, AS A MARSHAL OF THE CITY OF NEW YORK, ET AL., RESPONDENTS Reuben E. Gross and Avery J. Gross for petitioner. Louis J. Lefkowitz, Attorney-General (Walter J. Hogan of counsel), for Arthur Levitt, as Comptroller of the State of New York, respondent. Louis G. Bruhn, J. Author: Bruhn


Louis G. Bruhn, J.

Author: Bruhn

 This is an article 78 CPLR proceeding in the nature of mandamus seeking a judgment directing the respondent, Comptroller of the State of New York, to accept, file and honor an income execution issuing out of the Civil Court of the City of New York, County of Richmond.

Briefly, it appears that on or about December 19, 1967 the petitioner recovered a money judgment in such court in the amount of $217.57 against one Lizzie Dexter who was and is employed by the New York State Department of Mental Hygiene.

Thereafter the petitioner's attorney caused an income execution upon her earnings to be issued to Jack A. Gisonda, a Marshal of the City of New York. On or prior to February 8, 1968 such Marshal served such income execution upon the Comptroller pursuant to CPLR 5231 but the Comptroller has refused to accept or honor such income execution.

CPLR 5231 (subd. [f]) so far as material, provides: "a levy upon money payable directly upon the state comptroller's warrant, or directly by a state board, commission, body or agency which is not within any department of the state, shall be made by serving the income execution upon the state department of audit and control at its office in Albany. Service at the office of a department of the state in Albany may be made by the sheriff of any county by registered or certified mail, return receipt requested." (Italics supplied.)

At the outset and to be able more intelligently to understand the problem involved it should be noted that "The last sentence of subdivision (f) makes it clear that it is not necessary for an execution against a State employee to be delivered to the Albany sheriff; it may be forwarded directly to the appropriate office by the sheriff to whom it issued." (6 Weinstein-Korn-Miller, N. Y. Civ. Prac., par 5231.26; italics supplied.)

Since such provision was added to make it clear that it was not necessary to have the Albany Sheriff serve this type of execution the respondent's argument that it must be served in Albany has little merit.

Of course, the question is not where this process must be served, since service can originate with the Sheriff of any county in the State and be made by him by registered or certified mail, but, the question is whether or not a City Marshal of the City of New York can make the service by mail in the same manner as could a Sheriff of such city.

The respondent says the Marshal has no such authority, and for this position relies on subdivision (a) of section 701 of the New York City Civil Court Act which provides: "(a) In an action or proceeding brought in the court, all processes and mandates may be served or executed only within the city of New York unless this act otherwise provides. They shall be served or executed by the sheriff of the city of New York or by a city marshal. Where this act empowers the court's process or mandate to be served or executed without the city of New York, it shall be served or executed by such officer as could serve or execute the process or mandate of the supreme court of the county in a like instance." (Italics supplied.)

To complete the argument suggested by the italicized portion the respondent argues that process is good outside the City of New York only when the City Court Act so provides and that nowhere in the act is there any such provision.

This argument overlooks other provisions of the act and places an interpretation on subdivision (a) which is far too constricted.

Such limited interpretation overlooks the fact that processes and mandates of the court not only may be served but may also be " executed " within the city and " executed " not only by the Sheriff but by a City Marshal as well.

Such limited interpretation also overlooks the fact that the last sentence of subdivision (a) anticipates process or mandate of the court to be served outside the city and to be served by such officer who could serve Supreme Court process in the same manner.

Such limited interpretation further overlooks subdivision (b) of section 701 which provides: "The provisions of law applicable in supreme court practice, relating to the execution of mandates by a sheriff and the power and control of the court over the sheriff executing the same, shall apply in this court; ...


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