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MIDLANTIC NAT. BANK/NORTH v. REIF

March 9, 1990

MIDLANTIC NATIONAL BANK/NORTH, PLAINTIFF,
v.
JEFFREY A. REIF, DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM AND ORDER

Defendant/petitioner moves for an order vacating or, alternatively, modifying an income execution issued to satisfy a judgment entered by this Court. For the reasons set forth below, the motion is granted in part and denied in part.

FACTS

On March 1, 1989, this Court entered a default judgment against petitioner Jeffrey Reif in the amount of $28,264.44. The underlying action involved petitioner's personal guaranty of a business equipment lease. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. § 1332.

On September 28, 1989, plaintiff's attorney delivered an income execution to the Suffolk County Sheriff. N.Y.Civ.Prac.L. & R. 5231 (McKinney Supp. 1990); Fed.R.Civ.P. 69. Pursuant to the income execution, the Sheriff directed petitioner's employer to withhold from each of petitioner's paychecks 10% of his gross income until the judgment was satisfied.

DISCUSSION

New York permits the withholding of up to 10% of the judgment debtor's gross income under an income execution. N YCiv.Prac.L. & R. 5231 (McKinney Supp. 1990). Federal law, however, limits an income execution to 25% of a judgment debtor's disposable earnings. 15 U.S.C. § 1673; see also N YCiv.Prac.L. & R. 5231(g) (McKinney Supp. 1990). As a result, a New York income execution must meet two limitations: it may not exceed either 25% of disposable earnings or 10% of gross income.*fn1

Disposable earnings and gross income are defined as follows:

  Disposable earnings are that part of an
  individual's earnings left after deducting those
  amounts that are required by law to be withheld
  (for example, taxes, social security, and
  unemployment insurance, but not deductions for
  union dues, insurance plans, etc.).
  Gross income is salary, wages or other income,
  including any and all overtime earnings,
  commissions, and income from trusts, before any
  deductions are made from such income.

N YCiv.Prac.L. & R. 5231(g) (McKinney Supp. 1990).

Petitioner's gross income is approximately $600 per week from which 10%, or approximately $60, is deducted weekly under the income execution. Petitioner has not revealed much about his disposable earnings, but he does not suggest that the income execution exceeds 25% of his disposable earnings. There is no dispute, therefore, that the income execution was properly issued under the statute. Petitioner complains that the income execution is a financial burden, threatening his ability to support his family.

New York law provides two remedies for oppressive executions, one general, the other specific. Civil Practice Law and ...


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