§ 5221.Where enforcement proceeding commenced.

Subd (a) of this section is based upon CPA § 777 and the first sentence of § 773. While § 777 related to the place of institution of proceedings against judgment debtors, its provisions were incorporated by § 780 and 782(3), which applied to the place where proceedings against third parties and witnesses were to be instituted. Those former sections primarily served to limit the place of an examination as well as the place where the proceeding was instituted. Under CPLR §§ 5223 and 5224, however, it is not necessary to institute a proceeding in order to conduct an examination. Nevertheless, the place of examination under the new CPLR does not differ substantially from former practice, at least with respect to the county in which the examination is held. See notes to § 5224(c). Former §§ 777, 780 and 782(3) were exceedingly cumbersome and ambiguous. While this subdivision is intended to retain the former practice in order that there be no shift in the administrative burdens imposed by supplementary proceedings, it has been necessary to clarify some of the former provisions. Rather than use the term “court of record,” subparagraphs 1 and 2 specifically list the courts of record below the Supreme and County Courts. See Judiciary Law § 2. The City Court of Buffalo is also listed, in order to retain the former express authorization to that court, which is not a court of record. See CPLR § 5210 and notes. Throughout the new CPLR, the distinction between provisions applicable in courts of record and those applicable in courts not of record has been eliminated wherever possible; in this case, however, existing facilities for handling supplementary proceedings would be disturbed by any alteration in the former provisions. The provision of former § 773 that supplementary proceedings may be had on any judgment rendered in the state, whether by a court of record or by a court not of record, is included in the opening language of subparagraph 3. Former § 777 apparently indicated that a proceeding on a judgment of the Municipal Court of the city of New York should be instituted in the City Court in the county where the debtor lived or worked. Because of the ease of transportation within New York city, and in accordance with other provisions of the new CPLR, New York city is treated as a single unit, and a proceeding under subparagraph 2 may be instituted in any county in the city of New York. The term “respondent” in this subdivision designates the adverse party in the special proceeding. See CPLR § 401. The judgment creditor would be the petitioner in the proceeding and the respondent may be a garnishee, employer or other third party. See, e.g., § 5225. Since no proceeding is necessary to examine a witness and since the judgment debtor is proceeded against by motion (see subd (b)), a witness or the judgment debtor will not ordinarily be a “respondent.” A witness or judgment debtor is considered as if he were a “respondent,” however, for the purposes of subd (b), which designates the appropriate court for issuance of subpoenas and notices, as well as the appropriate court for making a motion against the judgment debtor. The fourth sentence of former § 777, as well as the second sentences of former §§ 780 and 782(3), are covered in subparagraph 4. Cf. CPLR §§ 2212(a), 2212(b) and 2213. The separate venue provisions for garnishee executions in subdivision 1 of former § 684 have been deleted; they are unnecessary as a result of th consolidation of garnishee executions with installment payment orders. See § 5225 and notes.

Subd (b). Since this article eliminates the necessity of instituting a special proceeding in order to examine or restrain a person, or in order to seek relief against a judgment debtor, subd (b) of this section is necessary to specify the court from which subpoenas and notices are issued and in which a motion is made. It also replaces a similar provision contained in the second sentence of subd 8 of former § 782, that a proceeding is “deemed pending” upon issuance of process, even if the process is not served, for the purpose of examining a witness out of the state. By making subpoenas, notices and enforcement motions in effect part of the original action, some of the former problems af appeal raised by the designation of supplementary proceedings as “special proceedings” are eliminated. See introduction to this article; see also Cohen & Karger, Powers of the New York Court of Appeals 131 and nn. 20, 169, 203 n. 63 (rev ed 1952). Examinations, restraints and enforcement motions would ordinarily not result in “final orders”; this is similar to the former disposition of motions relating to executions. Ibid. Where the rights of a third party are involved, however, or affirmative relief against him is sought, the judgment creditor would proceed under this article by special proceeding which would result in an appealable judgment. See CPLR rule 411.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 532; L 1965, ch 518, § 1, eff Sept 1, 1965; L 1970, ch 554, § 1; L 1971, ch 1069, § 1; L 1976, ch 164, § 1; L 1979, ch 92, § 2; L 1980, ch 289, § 2; L 1983, ch 341, § 2; L 1989, ch 124, § 1, eff June 2, 1989.