allow him an opportunity to either meet his legal obligation or
postpone the enforcement of a judgment until such time that its
enforcement is more properly sought." Id. at 687-688, 500
N YS.2d at 36.
The sale of the debtor's home by a sheriff, for example, may
well be considered an overly burdensome legal procedure.
Seyfarth v. Bi-County Electric Corp., 73 Misc.2d 363, 341
N YS.2d 533 (1973); Wandschneider v. Bekeny, 75 Misc.2d 32,
346 N.Y.S.2d 925 (1973). However, only the gravest
circumstances warrant CPLR 5240 equitable modification in the
face of a valid judgment. In Seyfarth the Court found that a
mother and child need not become public welfare recipients to
receive CPLR 5240 relief where the father's creditor sought to
sell the father's interest in the family home. That procedure
reeked of Dickensian squalor because of the immediate and
unavoidable consequences to the innocent mother and child,
although the procedure would have been appropriate if only the
debtor faced eviction. 73 Misc.2d at 365-66, 341 N.Y.S.2d at
By contrast, even in the face of harsh consequences to a
minor grandchild residing with the debtor, the forced sale of
a home was found appropriate where the underlying judgment was
for the substantial sum of $117,531.45 and was incurred
personally by the debtor. F.D.I.C. v. Lapadula, 137 Misc.2d 559,
521 N.Y.S.2d 391 (1987). While these cases deal with the
sale of property in satisfaction of a judgment, such
applications of CPLR 5240 are instructive and equally
applicable to income executions. Cook v. H.R.H. Construction
Corp., 32 A.D.2d 806, 302 N.Y.S.2d 364 (1969).
A legitimate 10% income execution resulting in a weekly
collection of $60 to cover a $28,000 debt cannot be said to be
overly burdensome. Far from oppressive, the execution procedure
strikes a fair balance between the needs of a creditor holding
a valid money judgment and the needs of a debtor managing
competing financial obligations.
II. MODIFICATION UNDER CPLR 5231
Petitioner also moves to modify the execution pursuant to
CPLR 5231(i). Once again, case law provides the best insight
into when modification of an otherwise valid income execution
The 10% required payment under an income execution may
properly be scaled down by court order when such weekly payment
is "unduly burdensome." First Westchester Nat'l Bank of New
Rochelle v. Lewis, 42 Misc.2d 1007, 249 N.Y.S.2d 537 (1964). In
County Trust Co. v. Berg, 65 Misc.2d 533, 318 N.Y.S.2d 154
(1971), a New York court interpreting CPLR 5231 concluded that
"[subdivision (i)] permits the Court, in the interest of
justice, and in its discretion, to reduce an income execution
where there would be extreme hardship, taking into
consideration the debtor's requirements, his dependents,
take-home pay and other relevant factors." Id. at 535, 318
N YS.2d at 156. Other courts have deemed a modification proper
when a 10% income deduction in a debtor's salary is "onerous,"
Royal Business Funds Corp. v. Rooster Plastics, Inc.,
53 Misc.2d 181, 278 N.Y.S.2d 350 (1967), or when it is
"impossible" to make payments without taking food out of the
mouths of the debtor's children, Carpenter v. Delage, 49
N YS.2d 702 (1944).
Clumsy attempts to imbue CPLR 5231 with a workable standard
for modification only confirm that each case turns on its
specific facts. It is clear however, that modification comes,
if at all, only to a debtor showing substantial hardship and an
unfair burden in meeting obligations.
Turning to the facts of this case, a reduction in
petitioner's income execution from 10%, to 5%, or approximately
$30 a week, is more than appropriate (with the understanding
that any improvement in petitioner's financial status may well
warrant an increase in weekly garnishment). Monitoring any such
change poses no problem because a creditor may also move for an
order modifying an income execution. N.Y.Civ.Prac.L. & R.
5231(i) (McKinney Supp. 1990). Viewing the totality of the
circumstances, the Court is persuaded that
petitioner's debt obligations amount to an extreme hardship.
See supra Berg.
Petitioner has warned that if no modification is forthcoming,
he will be forced to default on his family obligations. That,
according to petitioner, will pressure his wife into obtaining
a first-priority matrimonial income execution, effectively
preempting the commercial creditor in this action from
collecting anything at all. The Court is unpersuaded by this
threat,*fn2 except to the extent it underscores petitioner's
The Court reminds creditor, Midlantic, that it is not
powerless to collect on its judgment. Article 52 of New York's
Civil Practice Law and Rules provides an arsenal of weapons for
the enforcement of money judgments. Limitations on the
garnishment of wages do not immunize other assets. Long Island
Trust Co. v. United States Postal Service, 647 F.2d 336, 342
(2d Cir. 1981).
The income execution shall be modified so that it is limited
to 5% of petitioner's weekly gross income, amounting to
approximately $30 a week.