Petitioner, Manor Road Management, LLC, commenced this residential summary proceeding against the respondent, Jennifer Livingston, alleging the respondent remained in possession of the left side of the premises as 1064 Manor Road, Staten Island, New York after the termination of her lease term. The matter was resolved by a "so ordered" stipulation of settlement dated February 9, 2016 in the housing part of this court.

Under the terms of the stipulation, petitioner was entitled to a money judgment against respondent in the amount of $10,250.00 for unpaid rent/use & occupancy. A judgment in that amount was entered against the respondent and petitioner has sought to enforce the judgment pursuant to Civil Practice Law & Rules (CPLR) Article 52 by garnishing respondent's earnings.

Currently before the court is an application by the respondent to stay enforcement of the petitioner's judgment by garnishing her salary. She alleges and has produced documentation that there is a prior garnishment in place from the US Department of Education for a student loan on which respondent defaulted. Documentation from respondent's employer indicates that garnishment of wages to satisfy this federal lien commenced in May 2014, prior to the date of petitioner's judgment.

CPLR §5205(d) limits a creditor's ability to satisfy a judgment from a debtor's income. It provides:

(d) Income exemptions.

The following personal property is exempt from application to the satisfaction of a money judgment, except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents:...^[FN1]

2. ninety per cent of the earnings of the judgment debtor for his personal services rendered within sixty days before, and at any time after, an income execution is delivered to the sheriff or a motion is made to secure the application of the judgment debtor's earnings to the satisfaction of the judgment;...

In addition CPLR §5231 sets forth the procedure to be followed to in regard to an income execution and in paragraph (b) limits any income execution to ten per cent of the gross income of the debtor and limits the amount withheld from the judgment debtor's earnings pursuant to an income execution to an amount not to exceed twenty-five percent of the disposable earning of the judgment debtor for that week.

CPLR §5231(j) sets the priority for payment of income executions to the same or different creditors from the same source.

Respondent has presented documentation that the garnishment from the federal government is being executed pursuant 31 USCA §3720D. This section provides:

(a) Notwithstanding any provision of State law, the head of an executive, judicial or legislative agency that administers a program that gives rise to a delinquent nontax debt owed to the United States by an individual may in accordance with this section garnish the disposable pay of the individual to collect the amount owed, if the individual is not currently making required repayment in accordance with any agreement between the agency head and the individual.

The language of the federal statute appears not to even require that the agency bring an action and obtain a civil judgment. The statute permits garnishment of salary so long as the individual is in default. It also permits garnishment of 15% of income. However, there is ample law that limits the federal garnishment to the state amount if less [ 15 USCA §1677; U.S. v George, 144 F. Supp 2d 161 (2001).

Based on what the respondent alleges is her pay stub from her City of New York employment, her gross earnings for a two week pay period presented was $3,454.02. The pay stub shows 10% of her gross pay being garnished presumable for petitioner's judgment ($345.40) while slightly less than 10% for the higher education loan repayment ($333.75) is also being deducted.

It appears that the employer is withholding too much money. The New York law does not limit the restrictions on garnishment to judgments from New York courts. So respondent's employer should prioritize the garnishment requests. In this case, the federal garnishment is first in time and has priority.

The only explanation would be that her employer, the City of New York, thinks that CPLR Article 52 "Enforcement of Money Judgments" does not apply to higher education loan debt unless the debt is reduced to a judgment. Because it does not appear that respondent's student loan debt has been reduced to a judgment and the employer has concluded both debts should be deducted from respondent's pay.

Such a conclusion is in contradiction to a complete reading of Article 52 and the federal law which defines a garnishment as "any legal or equitable procedure through which the earnings of any individual are required to be withheld for the payment of any debt" [15 USCA §1672]. It is obvious that the legislature has sought to strike a balance between allowing validly obtained judgments to be enforced against a debtor's personal property including earnings while at the same time preventing the debtor from becoming destitute unable to make payments for life's necessities such as food, shelter and clothing. The fact that there are statutory limits on what may be deducted means that respondent's employer should not be deducting 10% of the gross income from each paycheck to pay the two garnishments. This would mean 20% of respondent's gross earnings are being deducted by the employer, a practice which violates the statute.

Respondent's gross income for the pay period was $3,454.02. The higher education garnishment at 10% of the gross income should be $354.40. Why it is collecting only $333.75 is not explained. The net disposable income every two weeks is $2,168.31, so 25% of that amount is $546.58 every two weeks. If higher education collects $345.40 every two weeks, it is within the 25% disposable income criteria of the statute to allow a 10% deduction. The statute does permit the second judgment creditor to satisfy its judgment when the maximum is being applied to a prior debt.

Based on the facts of this case, it appears that respondent's employer is wrongfully garnishing money for petitioner's judgment when there is a prior valid garnishment in place. Respondent's employer is stayed from garnishing money for petitioner's judgment until either the higher education garnishment is satisfied; or respondent's pay increases sufficiently to allow both debts to be paid within the statute's guidelines or the parties enter into a voluntary payment plan.

It is Ordered that:

City of New York is to cease collecting on petitioner's garnishment until the higher education garnishment is satisfied.

Petitioner's income execution is in full force and effect and is the next debt to be paid from respondent's earnings.

The foregoing constitutes the decision and order of the court.