§ 6214.Levy upon personal property by service of order.

Subd (a) of this section is derived from the first paragraph of subd 2 of former § 917. Rather than the latter’s prolix requirement of methods of service, dependent upon the nature of both the property and the garnishee, the order is required to be served in accordance with the methods of §§ 307 et seq., for the service of a summons. Thus, for example, service on a private corporation may be made by serving an officer, director, or managing or general agent or cashier or assistant cashier or other authorized agent. See § 311. In order to avoid any real change in the practice, however, § 6202, which is also derived in part from former § 917, specifies the garnishee for particular intangible property. The last clause of this subdivision is added to prevent service on the secretary of state or another person who has no custody or control over property in the garnishee’s possession. Since the original order is filed (see rule 6212(c)), there seems no reason to continue the requirement that the copy served be certified.

The first sentence of subd (b) of the section is derived from the second paragraph of former § 917(2). Contrary to former law, however, the levy is also effective against property coming into the hands of the garnishee after service of the order. That was the effect of a restraint in supplementary proceedings under former law. See § 5222(b) and notes. The third sentence is derived from the third paragraph of CPA § 917(2), except that the last sentence of the third paragraph is covered by § 6203. In addition to the prohibition against transfer, the garnishee or defendant served with an order is expressly directed to turn property over to the sheriff. The exception for items held for collection or collateral in the fourth paragraph of CPA § 917(2) has been included in next to the last sentence of this subd. Other situations where disposition or transfer is necessary, such as those involving perishable property formerly covered by CPA § 923, are covered by the last sentence of § 6218(a). Although it is apparent that the defendant’s equity in the proceeds would have to be retained by the garnishee if he sold or transferred the property, since there is “reason to believe” that it belongs to defendant, it is expressly stated that the proceeds in which the defendant has an interest be retained subject to the levy. The final phrase in the fourth paragraph of subd 2 of CPA § 917, which stated that the section did not diminish the rights of the holder of the property or any rights granted to a creditor of the defendant, is omitted as unnecessary. To some extent, the provision of the first sentence, regarding a notice to be served, represents a return to the method of attaching personalty incapable of manual delivery under CPA § 917 prior to 1940. It replaces many provisions introduced in 1940 for the specification of particular property. For example, the last paragraph of CPA § 910 contained a provision permitting the plaintiff to specify in writing particular property to be attached as the property of the defendant. The writing must have been served on the garnishee and filed and it might have been used to confine the sheriff to attaching the particular property. The provision, one of those adopted in 1940 (Laws 1940, c 625), was “intended to do no more than codify the rule of practice approved by the Court of Appeals.” Finn, Streamlining Attachment Procedure, 9 Ford L Rev 1, 17 (1940), citing Cotnareanu v Chase Nat’l Bank, 271 NY 294, 2 NE2d 664 (1936). Although the practice of specifying property is undoubtedly a sound one, the provision of CPA § 910 was misleading and far broader than a codification of a rule of practice. In the Cotnareanu case, a notice, then required by CPA § 917(3) to be served with the warrant in levying upon personalty incapable of manual delivery, was cast in general terms which did not sufficiently identify to the garnishee the property sought to be attached. The property was held in another’s name and the court held that the plaintiff acquired no lien. The requirement of serving notice, which is reintroduced by this subd permissively in all cases, was deleted in the same revision which adopted the specification procedure existing just prior to the adoption of the new CPLR. Laws 1940, c 625. While notice to the garnishee sufficiently identifying the property attached is certainly a fair requirement, especially in cases where the property is not in the defendant’s name, the wisdom of permitting a plaintiff to limit the sheriff to attaching particular property of the defendant may be seriously questioned; it presents far too many opportunities for harassment and oppression without offering any further protection. Moreover, requiring the specification to be filed seems of little value and creates another area for dispute over technical irregularity. Under rule 6212(d), a copy of the notice may be demanded. A corollary provision was also adopted in 1940 which permitted the true owner of attached property to recover damages from a plaintiff who had incorrectly specified it as belonging to the defendant. CPA § 924(1). That provision was also misleading since plaintiffs who incorrectly directed attachment of property might have been liable in damages to the true owner whether the property was “specified” pursuant to the rule or not. See e.g., Hill v White, 46 App Div 360, 61 NY Supp 515 (3d Dept 1899), affd 170 NY 566, 62 NE 1096 (1902); cf. Dyett v Hyman, 129 NY 351, 29 NE 261 (1891). As indicated in the Cotnareanu case, a notice specifying property must be detailed enough to identify to the garnishee the particular property claimed. See also Clarke v Goodridge, 41 NY 210 (1869).

Subd (c) of this section is derived from the second sentence of the second paragraph of former § 912. Rather than “collect, receive and enforce,” this subdivision requires the sheriff to “collect and receive” debts. Omission of the word “enforce” is intended to make it clear that the sheriff is not required to bring an action in order to collect debts. “Debts” is defined in §§ 5201(a) and 6202 to include causes of action.

Subd (d) of this section represents a substantial modification of former practice. It replaces the provisions of former § 922 for an action or special proceeding by the sheriff, as well as the joint-suit provisions of former §§ 943, 944, 945 and 946. The third sentence of this subdivision is derived from former § 944-a. Although former §§ 943, 944, 945 and 946 set up an alternative procedure to that of former § 922, the latter was seldom used. The two procedures differed only formally: under § 922, the sheriff brought the action, but he was indemnified by the plaintiff for his costs and expenses; under § 943, the sheriff and the plaintiff brought the action jointly, the plaintiff having sole liability for costs and expenses. Since the plaintiff usually prefers to utilize his own attorney and since it is difficult to fix the indemnity, the joint action seems the more straight-forward approach. Rather than an action, however, this provision contemplates a special proceeding, but all of the provisions of former §§ 943, 944, 945 and 946 for leave of and control by the court are eliminated. The proceeding is brought by the plaintiff for the delivery of the property to the sheriff. Thus, the cost and expense of the proceeding are borne by the plaintiff, while the sheriff, who is to hold the property, is given notice of the proceeding. The proceeding provided for in this subdivision may be based on the garnishee’s statement and disclosure (see §§ 6219 and 6220) although it need not be. An analogous procedure was formerly utilized in supplementary proceedings. See CPA § 796; cf. § 5224. If any party is entitled to a jury trial, such a trial would be directed by the court. See rule 408. Other provisions of article 4, relating to special proceedings, including the garnishee’s right to ask for other relief (compare CPA § 944-a, with § 402), would also apply to this proceeding. The garnishee has a duty to hold the property of the defendant for the first ninety days as well as for any further period covered by an order extending the plaintiff’s time to bring a proceeding under this section. See subdivisions (b) and (e) of this section. If an order is served upon the garnishee after the ninety days or an extension thereof have expired but while the property is still in the garnishee’s possession, he would be obligated to keep it. There is no reason why the copy of the extension order served upon the garnishee need be certified and this requirement of the third paragraph of subd 1 of former § 922 has been omitted. The first sentence indicates that the court may direct that a judgment be entered rather than that a debt must be paid. Judgment will be the usual disposition of this proceeding, since the judgment creditor should gain no rights against a debtor of the judgment debtor better than he would have against the judgment debtor himself. The last sentence indicates that it is intended that the rights of all claimants can be determined on this proceeding. The sentence clarifies that the provision changes former law which requires a plenary action to determine rights.

Subd (e) of this section is derived from subd 2 of former § 922. The elaborate provisions of the last paragraph of subdivision 1 of former § 922 for the extension of the ninety-day period have been omitted in favor of a statement that the “court, upon motion of the plaintiff,” may provide additional time. Cf. Subd (b).

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 532, eff Sept 1, 1963; L 1965, ch 773, eff Sept 1, 1965; L 1977, ch 860, § 6, eff Sept 1, 1977.