§ 5230.Executions.

(See also Advisory Committee Notes preceding § 5201, under subheading “Executions generally.”).

Subd (a) of this section replaces parts of CPA §§ 222-a, 640, 641, 642, 643, 645(1), 658, 711 and 1199. It is designed to consolidate and simplify the formal requirements of an execution. In this subdivision are gathered together the various scattered provisions which prescribe what must be specified in an execution under particular circumstances. For example, it includes the provision in the last sentence of CPA § 222-a which requires an execution to be indorsed with the names of the persons summoned where the judgment is against a partnership. It also includes the similar provision in § 1199 and that in the last sentence of former § 642 that the execution must show which of the parties are judgment debtors (see notes to § 5201(b)) and the provision of former § 658 requiring an execution to specify the name of a judgment debtor who has died. The last sentence in this subdivision is derived from former § 711. It implements the provision of former § 710 which is retained by §§ 5235 and 5236(b). The effect of this provision when read with former CPA § 1077 is to require an election between foreclosure and a suit on the mortgage debt. See notes to § 5236(b). The next to last sentence in the subdivision is derived from subd 1 of CPA § 645. The former priority provision, that personal property attached must be applied before real property attached, has been deleted in accordance with the deletion of the similar general priority requirement of former § 643. See introduction to this article. Subd 2 of former § 645 requires that attached property be first applied to the satisfaction of a judgment, even where personal jurisdiction was obtained, before other property is levied upon. This requirement has also been deleted. It will obviously facilitate collection of a judgment if property already in the hands of the sheriff is applied before other property, but no reason appears to prevent the sheriff from levying on money, for example, rather than selling property that has been attached. Moreover, the further requirement of subd 2 of former § 645 that personal property not attached be levied upon before real property already attached can be utilized is also deleted, because of the same considerations which dictated abolition of the personal property priority where no property has been attached. See introduction to this article. Where a judgment in an action where jurisdiction was based upon an attachment has been partially satisfied by application of the attached property, the plaintiff may bring an action on the judgment for the balance due him. See CPLR rule 5014(2); CPA §§ 484(2), 520. In such an action, however, he should allege the extent to which the prior judgment has been satisfied; such an allegation would also be necessary where an action is brought upon a judgment because the statute of limitation is about to expire. Cf. rule 5014(1); CPA § 484(1). See also NJ R Civ P 4:55-3, 4:60-6. Former § 640-a has been omitted because of the elimination of the five-year limitation of §§ 650, 651 and 652. See notes to subd (b). The language of § 642 relating to a date from which interest should be computed has also been omitted. Since all money judgments bear interest from the date they are entered (see § 5003; CPA § 481), requiring specification of the “date of the judgment” is sufficient. This subdivision requires that the judgment debtor against whom the execution is issued be named and that his last known address be specified in every case.

Subd (b) of this section replaces parts of CPA §§ 635, 636, 641, 643, 648, 650, 651, 652 and 653. The former law distinguishes between executions issued before and after five years from the entry of judgment. Where an execution was not issued during the first five years, leave of court, granted only upon notice and proof that the judgment remains unsatisfied, is necessary to issue an execution thereafter. This distinction is an unreal one and results in an unnecessary burden upon the courts and judgment creditors. It ignores other enforcement procedures that the creditor may have taken within the first five years and penalizes a creditor who withholds issuing a patently unproductive execution during that time. This five-year “junior limitation statute” has therefore been eliminated. Cf. Calif Code Civ Proc §§ 681, 685 (period during which an execution may be issued without leave of the court extended in 1955 from five to ten years); see also Reisenfeld, Collection of Money Judgments in American Law–A Historical Inventory and a Prospectus, 42 Iowa L Rev 155, 176–77 (1957). This subdivision also eliminates the former requirement that a transcript of the judgment be filed in the county to which an execution is issued. There is no such requirement in most states and former New York provisions in the supplementary proceedings and attachment articles do not include a similar requirement. Since the execution will specify the court in which judgment was entered and where the judgment-roll is filed, sheriffs may easily verify the information contained in an execution by mail or telephone to the clerk of that court. Except for effecting a lien on local real property, the docketing of transcripts is not worth the expenditure of time and money by the courts and litigants that it entails. It should be noted that former CPA § 648 permitted an execution against the person or for the delivery of the possession of a chattel to be issued to “any county” without regard to where the judgment is docketed. Several executions upon a single judgment might formerly have been issued and made returnable to the clerks of various counties simultaneously. Cf. CPA, § 641; NY Justice Ct Act §§ 274, 280; NYC Munic Ct Code § 133. When the executions are returned partially satisfied, the records of each clerk may indicate a different amount remaining due on the judgment. To avoid such confusion, this subdivision provides for a single place of issuance for executions upon the same judgment. And subdivision (c) requires all returns to be made to the clerk of the court from which the execution issued. Cf. CPLR rule 5017(a), §§ 5021(b), 5021(c); CPA § 72. The explicit statement that executions may be issued by an attorney as officer of the court is new but represents former practice. Cf. rule 3402(a). Under this subdivision executions retain their different status from supplementary proceedings to some extent. In order to issue an execution to a sheriff, with a few exceptions, all inferior court judgments must be docketed by transcript in the county where the inferior court is located under the former provisions as well as under the new CPLR; supplementary proceedings require no transcript under both present and former law. See introduction to this article. Because of the abolition of the five-year limitation on executions, the “New York system of separating actionability, executability and operation as lien” ( Reisenfeld, supra at 177) is reduced in complexity. Actionability remains at twenty years and executability becomes coextensive with it. The ten-year lien on real property is retained by § 5203(a). The provision of the first sentence of former § 636 that an execution be directed to a sheriff is included in this subdivision. The remainder of that sentence, providing that an execution be directed to the coroner or coroners when the sheriff is a party or interested, is omitted, since such a provision is already included in subdivision 1 of § 661 of the County Law. Similarly, the provision of subdivision 3 of § 661 of the County Law that the medical examiner performs such duties if the office of coroner has been abolished, and that of § 909 of the County Law authorizing the county clerks in the city of New York to perform such duties, together cover most of the remaining provisions of CPA § 636. In the light of these provisions, there seems no necessity to expressly continue the authority of the court to appoint a private person to whom an execution shall be directed. The last sentence of former § 636, which was added in 1957 (Laws 1957, c 563), is deleted as unnecessary because it is only operative where the sheriff is a nominal party under CPA §§ 922 or 943 and the suit by the sheriff under those sections has been abolished by article 62. See notes to § 6214(d); cf. § 6221. CPA § 639, which, by its own terms, “does not apply in a case where special provision is otherwise made by law,” is also deleted. Provisions in §§ 651 and 652(1) of the County Law amply cover the problem of vacancy in the sheriff’s office. Because of these latter provisions and because of the abolition of redemption of real property (see preliminary note to CPLR § 5236), CPA §§ 752 through 755 are also deleted as unnecessary.

Subd (c) of this section is based upon parts of CPA §§ 640 and 641. The last sentence of § 640 provides: “Except as otherwise prescribed in the next section, it [an execution] must be made returnable to the clerk with whom the judgment-roll is filed.” Although former § 640-a has been “the next section” since 1947, the exception refers to former § 641, which provides that where the execution is issued out of a court other than that in which the judgment was rendered, upon filing a transcript of the judgment, the execution must be made returnable to the clerk with whom the transcript was filed. Language has been added to indicate that an execution against a debt levied by service of the execution and an execution against income levied in the same manner are exempted from the requirement that the execution be returned in 60 days. The extension of time provision limits the duration of an extension and the number of extensions specifies that the extension must be in writing.

Subd (d) of this section is derived from CPA § 636-a. The date and time of delivery must be recorded and endorsed upon the execution, in order to effectuate the priority provisions of § 5234.

Editor's Notes Laws 2021, ch 831, § 7, eff April 30, 2022, provides: § 7. This act shall take effect on the one hundred twentieth day after it shall have become a law.

Formerly § 5229, add, L 1962, ch 308; renumbered § 5230, L 1962, ch 315, § 5, eff Sept 1, 1963; L 1963, ch 532, § 32; L 1963, ch 544, § 2; L 1993, ch 59, § 14, eff July 1, 1993; L 2008, ch 575, § 5; L 2009, ch 24, § 8, eff May 4, 2009; L 2021, ch 831, § 4, effective April 30, 2022.