The following papers efiled on NYSCEF were used on this motion: Document Nos. 1, 4, 19, 24, 27, 28-30.

Upon the foregoing papers, having heard oral argument from Plaintiff, who relied on its written submission, and due deliberation having been had, the within motion by Defendant is determined as follows.

This action was commenced on July 20, 2023, when Plaintiff Bank of America, N.A. filed a summons and complaint against Defendant Dionne M. Mohamad. The complaint alleged that Defendant owed Plaintiff $57,835.07 from an unpaid credit card account. In her answer, dated October 16, 2023, Defendant admitted the allegations alleged in the complaint. Defendant's answer included the following:

The debt with Bank of America arose from the death of my father in June 2021. This debt incurred due to funeral and burial arrangement and other living expenses. The increased cost of living has made it impossible for me to fulfill my financial obligations to Bank of America and other debtors. Due to the significant increased cost of living, I [*2]am not able to meet my monthly expenses and pay the $1200 monthly payment Bank of America requested. I have taken several steps to alleviate my financial burden, such as temporary loan modification, interest rate reduction, and negotiating with creditors. Unfortunately, these efforts are temporary and have not been sufficient in regaining financial stability. At this time, I am hoping to find a solution that will allow me to fulfill ongoing obligations without further financial strain. I am requesting a reasonable monthly payment arrangement from Bank of America in order to satisfy the debt owed to them.

Summary judgment was granted to Plaintiff and Defendant on October 31, 2025, and a judgment in the principal amount of $58,385.07 was entered on November 12, 2025.

Defendant presented an order to show cause to the Court on December 2, 2025, seeking an order directing Plaintiff to cease and desist from collection activities. The signed order to show cause set down the matter to be heard on December 22, 2025. Plaintiff has interposed opposition.

It is Defendant's contention that she is exempt from any collection efforts because her entire income is derived from public assistance, which is protected under the Exempt Income Protection Act (EIPA). Defendant also relies on 42 USC § 407, which protects Social Security benefits. Plaintiff argues that granting Defendant the broad relief she seeks would prevent it from engaging in debt collection activities against non-exempt property of Defendant.

Civil Practice Law and Rules (CPLR) 5240 provides: "The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. Section 3104 is applicable to procedures under this article." Under this statute, a court is imbued with broad discretionary power to control and regulate the enforcement of a money judgment in accordance with CPLR Article 52 (see George v Victoria Albi, Inc., 148 AD3d 1120, 1121 [2d Dept 2017]).

"Pursuant to CPLR 5240, a court may, on its own initiative or on motion, stay the enforcement of a judgment. The purpose of this 'broad discretionary power' is to permit the trial court to ' "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court" ' (Country Bank v Broderick, 120 AD3d 463, 464 [2014], quoting Matter of Sanders v Manufacturers Hanover Trust Co., 229 AD2d 544, 544 [1996]; see Matter of Stern v Hirsch, 79 AD3d 1046, 1048 [2010]; Technology Multi Sources, S.A. v Stack Global Holdings, Inc., 44 AD3d 931, 932 [2007]; Paz v Long Is. R.R., 241 AD2d 486, 487 [1997])." (Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 155 AD3d 678, 682 [2d Dept 2017].)

In exercising its powers under CPLR 5240 to restrain debt collection activities, a court must "harmoniz[e] the judgment debtor's interest in avoiding irreparable family harm resulting from execution upon [ ] property with the legitimate interest of a creditor in securing payment of [*3]a valid debt" (Holmes v W.T. Grant, Inc., 71 Misc 2d 486, 487 [Sup Ct, Nassau County 1972]). This principle was cited with approbation by the Court of Appeals in Plymouth Venture Partners, II, LLP v GTR Source, LLC (37 NY3d 591, 603 [2021]).

In the instant case, Defendant has not pointed to any specific debt collection activity undertaken by Plaintiff which was inappropriate, unethical, or contrary to law, or which unreasonably caused her annoyance, expense, embarrassment, disadvantage, or other prejudice. What Defendant seeks to do is immunize herself prospectively from any attempt by Plaintiff to collect on its judgment, without even affording the opportunity to Plaintiff to do so in a lawful manner which would not involve funds exempted by state or federal statute.

New York has strong and comprehensive statutory provisions governing the enforcement of money judgments. In Cruz v TD Bank, N.A. (22 NY3d 61, 66-68 [2013]), the Court of Appeals provided a description:

CPLR Article 52 and the EIPA^[FN1]:

CPLR article 52 sets forth procedures for the enforcement of money judgments in New York, which may include the imposition of a restraining notice against a judgment debtor's bank account to secure funds for later transfer to the judgment creditor through a sheriff's execution or turnover proceeding. Under both federal and state law, certain types of funds are exempt from restraint or execution, including Social Security benefits, public assistance, unemployment insurance, pension payments and the like (see generally CPLR 5205). Although the clear legislative intent is that funds of this nature are not to be subject to debt collection (and therefore excluded from any pre-execution restraint), prior to 2008 banks served with restraining notices often inadvertently froze accounts containing income from these sources, leaving judgment debtors without access to much-needed exempt monies.

The EIPA was intended to ameliorate this problem, amending certain existing statutes in CPLR article 52 and adding a new CPLR 5222-a (L 2008, ch 575). The amendments restricted the scope of the restraint that can be implemented against the bank account of a natural person and created a new procedure aimed at ensuring that this class of judgment debtors is able to retain access to exempt funds. In substance, subject to limited exceptions consistent with federal law, the EIPA precludes a bank from restraining baseline minimum balances in a "natural person's" account absent a court order. Specifically, $2,500 is free from restraint "if direct deposit or electronic payments reasonably identifiable as statutorily exempt payments . . . were made to the judgment debtor's account during the forty-five day period preceding" the restraint (CPLR 5222 [h]). Otherwise, the statute excludes from restraint an amount that corresponds to 90% of 60-days wages under the federal or state minimum wage laws, whichever is greater, to be periodically adjusted—$1,740 as of July 2009 (CPLR 5222 [i]).

In addition to limiting the scope of a restraint, the EIPA added new notification and claim procedures in CPLR 5222-a intended to educate judgment debtors concerning the types of funds that are exempt from restraint or execution in order to facilitate the filing of exemption claims. A judgment creditor restraining a bank account (in anticipation of a [*4]sheriff's execution by levy or court-ordered transfer of assets) must serve the bank with specific forms: two copies of the restraining notice, an exemption notice and two exemption claim forms (CPLR 5222-a [b] [1]). The restraint is void if the judgment creditor fails to provide these documents to the bank; in that event, the bank "shall not restrain the account" (CPLR 5222-a [b] [1]), nor can the bank charge fees associated with a restraint (CPLR 5222 [j]).

CPLR 5222-a also imposes a new obligation on financial institutions because it compels banks to mail to judgment debtors (the account holders) copies of the exemption notices and exemption claim forms received from judgment creditors (CPLR 5222-a [b] [3]). The statute states, however, that "[t]he inadvertent failure by a depository institution to provide the notice required . . . shall not give rise to liability on the part of the depository institution" (CPLR 5222-a [b] [3]). The notice advises the judgment debtor that the bank account is being restrained, describes the categories of funds that are exempt from restraint, and provides information concerning how to seek vacatur of the money judgment to avoid a subsequent transfer of the funds to the judgment creditor (CPLR 5222-a [b] [4] [a]). The exemption claim form lists specific income sources that are not subject to restraint or execution (such as Social Security benefits, unemployment insurance, child support, veteran's benefits, etc.) and directs the debtor to check the box next to any applicable exempt funds that have been deposited in the account (CPLR 5222-a [b] [4] [b]). The debtor is then advised to return one copy of the claim form to the bank and the other to the creditor (or its representative) within 20 days (CPLR 5222-a [b] [4] [b]). If 25 days have elapsed and the bank has not received an exemption claim form from the judgment debtor, all funds in the account in excess of the applicable statutory minimum remain subject to the restraining notice (CPLR 5222-a [c] [5]). However, a failure to return the claim form may not be interpreted as a waiver of any exemption the judgment debtor may possess (see CPLR 5222-a [h]).

Upon receipt of an exemption claim form from the account holder, the bank must notify the judgment creditor "forthwith" of the exemption claim and the creditor then has eight days to object (CPLR 5222-a [c] [2], [3]). If no objection is lodged, the restraint is lifted with respect to the disputed funds and the monies are released to the judgment debtor (CPLR 5222-a [c] [3]). To object to an exemption claim, the creditor must timely commence a special proceeding under CPLR 5240, serving papers on both the debtor and the bank before the expiration of the eight-day objection period (CPLR 5222-a [d]). Within seven days of commencement of the proceeding, a hearing is to be held before a court, resulting in issuance of a judicial decision no later than five days after the hearing (CPLR 5222-a [d]). In the meantime, the bank is required to hold the disputed funds for 21 days unless a court order directs otherwise; if 21 days pass and no judicial resolution of the exemption issue is forthcoming, the bank must release the disputed funds to the judgment debtor (CPLR 5222-a [e]). Another subdivision imposes special liability upon judgment creditors that object to exemption claims in bad faith (CPLR 5222-a [g]).

The EIPA did not alter the preexisting provisions in CPLR article 52 permitting the commencement of special proceedings whereby creditors, debtors and "any interested person" can adjudicate disputes over the ownership of income or property (CPLR 5239, 5221), nor did it restrict the power of the court to "make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure" [*5](CPLR 5240).

The elaborate provisions of CPLR Article 52 concerning debt collection were further described in Plymouth Venture Partners, II, LLP v GTR Source, LLC (37 NY3d at 600):

CPLR article 52, which provides a mechanism for addressing the "innumerable situations [that] can arise that manifest abuse of the enforcement devices" authorized in that statute, is the exclusive avenue for a judgment debtor seeking relief from the use of an enforcement mechanism that does not comply with article 52's requirements (Richard C. Reilly, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5240:1).

The enactment of CPLR article 52 "effected sweeping changes of both substance and procedure in the law relating to the satisfaction of money judgments" (Guardian Loan Co. v Early, 47 NY2d 515, 518 [1979]). The statute regulates the methods of enforcement and satisfaction of money judgments by, for example, exempting certain property, establishing liens and priority rules among creditors, imposing technical requirements for enforcement devices, and providing a flexible array of procedures for relief from violations of the statute. Section 5232 (a) governs the process of levy by service of execution, and specifically provides that "service [of a copy of the execution upon the garnishee] shall not be made by delivery to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318," and CPLR 318 in turn sets out the requirements for designation of an agent for service of process.[ ]

"[G]eneral provisions that permit 'any interested person'—including a judgment debtor—to secure remedies for wrongs arising under the statutory scheme" are set out in CPLR 5239 and 5240 (Cruz v TD Bank, N.A., 22 NY3d 61, 74 [2013]). CPLR 5239 provides that "[p]rior to the application of property or debt by a sheriff or receiver to the satisfaction of a judgment, any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt." In such a proceeding, "[t]he court may vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded" (CPLR 5239; see Siegel & Connors, NY Prac § 521 at 993 [6th ed 2018] [the court in a CPLR 5239 proceeding can "render judgment . . . for whatever is warranted" and "award damages to any party establishing a legal right to them"]). Section 5240 in turn lays out the court's power to, "at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure." Intended to "replace myriad provisions of the Civil Practice Act which often led to conflicting results, . . . CPLR 5240 grants the courts broad discretionary power to control and regulate the enforcement of a money judgment under article 52 to prevent 'unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts' " (Guardian Loan, 47 NY2d at 519, quoting 3d Prelim Rep of Advisory Comm on Prac and Pro, 1959 NY Legis Doc No. 17 at 314). In other words, this provision "center[s] in one place [the] pervasive judicial power to right, on a case by case basis, any wrong in connection with any of the numerous Article 52 procedures" (Siegel & Connors, NY Prac § 522 at 993 [6th ed [*6]2018]).[ ] Accordingly, CPLR 5240 provides courts with the ability to craft flexible and equitable responses to claims that arise with respect to enforcement of valid money judgments.

Nothing in Defendant's papers suggests that Plaintiff has failed to conform to any provision of the EIPA. Nothing here evidences that Plaintiff has even attempted to collect on the debt by engaging in any of the debt collection procedures it is legally permitted to undertake. At this point, to preclude Plaintiff from undertaking any and all debt collection activities would be contrary to public policy. When a financial institution provides credit to a customer requesting it, it does so with the expectation that the money will be repaid. Much of our economy depends on the availability of credit being provided to financially responsible individuals. If every financial institution which has legitimately obtained a money judgment against someone who did not repay the debt is outright restrained from enforcement efforts to collect repayment, the process of providing credit will terminate and the economy would flounder. It is to be noted that financial difficulties are not per se a defense excusing non-performance of a contract (see 407 E. 61st Garage, Inc. v Savoy Fifth Ave. Corp., 23 NY2d 275, 281 [1968]).

New York has struck a balance, as hereinabove described. New York law permits Plaintiff to seek to locate non-exempt assets of Defendant upon which to execute. It also precludes it from executing upon exempt property. The process prescribed in CPLR Article 52, including the EIPA, should not be prematurely enjoined or restricted, as is sought by Defendant. Both parties are reminded that collection efforts and challenges to them must conform to the CPLR's provisions.

Inasmuch as it is premature for the Court to exercise its authority pursuant to CPLR 5240 to make an order denying or restricting a debt collection procedure where there has been no attempt yet to utilize it, it is hereby ORDERED that Defendant's motion herein is DENIED.