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