National Sur. Corp. v. R.H. Macy & Co., Inc.
| Decision Date | 22 November 1982 |
| Citation | 455 N.Y.S.2d 1007,116 Misc.2d 780 |
| Court | New York Supreme Court |
| Parties | NATIONAL SURETY CORPORATION, Petitioner, v. R.H. MACY & CO., INC., Respondent. |
Samuel Komoroff, Brooklyn, for petitioner.
Marvin Fenster, New York City, for respondent.
Petitioner moves for summary judgment against respondent in the amount of $4,150. on the ground that respondent, as garnishee, has failed to comply with the terms of an income execution served upon it.
In 1959, petitioner recovered a judgment against one Samuel Begleiter, who was then and is now respondent's employee. An income execution was issued and after service upon the judgment-debtor, and his default thereon, the execution was served on respondent on May 31, 1967. The income execution recited that a judgment had been entered in the sum of $7,064.54 including costs "of which $4,984.54 together with interest thereon from November 25, 1959 remains due and unpaid."
It is uncontroverted that the figure $4,984.54, the amount of principal outstanding on the judgment was the only figure disclosed, although the execution recited that interest remained due and unpaid. The Sheriff had not calculated the interest, fees and expenses or notified respondent of the exact amount due on the income execution which included said sums. According to respondent's payroll procedures, this lump sum amount was recorded in its payment ledger, and since no further notice, as to the exact amount was ever received from the Sheriff, the figure recorded was never adjusted to include interest, fees and expenses.
Although respondent contends that it only commenced payment on the income execution in November, 1975, after properly notifying the Sheriff, petitioner contends it received eight payments between October, 1970 and February, 1972, before payments were again resumed in 1976. Payments on the income execution then continued monthly until $4,984.54, by respondent's calculation, had been paid in full. Petitioner claims it has in fact been paid $5,649.68.
Thereafter, there was an approximate 25 month period when no payments were made. Respondent contends that it first received notice of the claimed default on October 20, 1981, when it received notice from the Sheriff's office that petitioner's judgment had not been satisfied and that the income execution was still alive. On November 2, 1981, respondent's payroll clerk wrote to the Office of the Sheriff, advising that although their records indicated that the final payment was made in July, 1980, the Sheriff should advise respondent if any interest remained due and unpaid. Shortly thereafter, on November 13, 1981, respondent received notice of the actual amount of principal, interest, fees and expenses still outstanding on the judgment. Respondent immediately resumed making deductions from the employee's salary and it stated that it will continue to do so until the judgment is satisfied or the employee leaves respondent's employ.
In December, 1981, petitioner's attorney began a course of correspondence with respondent, through May 25, 1982, for the purpose of ascertaining the amount of salary the employee had collected and to advise respondent that interest, for the period of default was due and owing. On July 30, 1982, petitioner commenced this proceeding against respondent asserting respondent is liable for $4,150 in defaulted payments.
It is respondent's position on this motion that not only did the income execution fail to meet the requirements of § 5231 CPLR, in that the Sheriff failed to adequately disclose the amount of interest, fees and expenses due and owing on the judgment, but further, that it is not respondent's duty under the applicable statutes to compute the amount of interest due on a judgment together with costs and fees. Respondent also argues that petitioner is estopped from proceeding herein by the doctrine of laches.
Petitioner argues that as an employer, respondent was duty bound to comply with the terms of the income execution notwithstanding the fact that interest, etc. had not been computed. In fact, the computation of interest was "a matter of arithmetical computation on the part of the employer". Smith v. Endicott-Johnson Corp., 199 A.D. 194, 192 N.Y.S. 121, aff'd 234 N.Y. 628, 138 N.E. 474, aff'd 266 U.S. 291, 45 S.Ct. 63, 69 L.Ed. 293.
The law is well settled that an employer is bound to obey the directive contained in an...
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