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MCCAHEY v. L.P. INVESTORS

August 31, 1984

CYNTHIA McCAHEY, Plaintiff, against L.P. INVESTORS; ALLEN M. ROSENTHAL; AFFILIATED CREDIT ADJUSTERS; SHERIFF OF SUFFOLK COUNTY; and SUFFOLK COUNTY CLERK, Defendants.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

PLATT, D.J.

 The plaintiff, Cynthia McCahey, has brought this action seeking declaratory, injunctive and compensatory relief. She maintains that the New York State procedures for post-judgment restraint, execution and levy, as set forth in amended New York Civil Practice Law and Rules sections 5222, 5230 and 5232, N.Y.C.P.L.R. §§ 5222, 5230, 5232 (McKinney Supp. 1983), violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Ms. McCahey asserts that these provisions are unconstitutinal insofar as they permit restraint and levy upon assets that, under various state and federal statutes, are exempt from legal process without adequate notice or an opportunity to be heard.

 In 1982, District Court Judge Lasker declared unconstitutional predecessor provisions of the CPLR chaallenged by Ms. McCahey, Deary v. Guardian Loan Corp., 534 F. Supp. 1178 (S.D.N.Y. 1982). As a result of Judge Lasker's opinion, these sections were amended by the New York State Legislature. N.Y.C.P.L.R. §§ 5222, 5232 (McKinney Supp. 1983). Ms. McCahey attacks the amended sections and argues that, despite the amendments, these sections remain unconstitutional.

 Defendants Allan Rosenthal and L.P. Investors have filed motions to dismiss for failure to state a claim upon which relief may be granted. The plaintiff has cross-moved for partial summary judgment declaring CPLR §§ 5222, 5230 and 5232 unconstitutional. Oral argument was heard on these motions on June 1, 1984 and June 15, 1984. For the reasons stated below, we hold that due process is satisfied by the New York procedures.

 I.BACKGROUND

 The New York Procedure for Restraint and Execution on Judgments.

 The procedures governing the enforcement and satisfaction of money judgments in New York State are set forth in Article 52 of the CPLR. The plaintiff argues that amended sections 5222, 5230 and 5232, providing for restraint, execution and levy, are unconstitutional.

 Under section 5222, *fn1" a judgment creditor's attorney, acting as an officer of the court, may restrain the transfer of property of the judgment debtor that is held by another party, such as a bank, by issuing and serving a restraining notice. The restraining notice, which is effective against the garnishee for one year after service, has the effect of freezing the debtor's property in an amount up to twice the amount of the judgment until the judgment is satisfied or vacated or a sheriff seizes the debtor's property. Section 5222 provides that, within four days of the service of the restraining notice, notice must be provided to the judgment debtor, along with a copy of the restraining notice. Section 5222(e) specificies the content of the notice; it provides that:

 The notice required by subdivision (d) shall be in substantially the following form and may be included in the restraining notice:

 NOTICE TO JUDGMENT DEBTOR

 Money or property belonging to you may have been taken or held in order to satisfy a judgment which has been entered against you. Read this csrefully.

 YOU MAY BE ABLE TO GET YOUR MONEY BACK

 State and federal laws prevent certain money or property from being taken to satisfy judgments. Such money or property is said to be "exempt". The following is a partial list of money which may be exempt:

 1. Supplemental security income (SSI)

 2. Social Security;

 3. Public assistance ...


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