Prue v. City of Syracuse
| Decision Date | 28 June 1984 |
| Citation | 478 N.Y.S.2d 529,124 Misc.2d 1036 |
| Parties | Edgar PRUE, Plaintiff, v. CITY OF SYRACUSE, New York, Onondaga County District Attorney, Richard A. Hennessey, Jr., Syracuse Police Chief Thomas Sardino and City of Syracuse Police Department, Jointly and Severally, Defendants. |
| Court | New York Supreme Court |
The dispute presently before the court is but the latest in a series of legal encounters between plaintiff, Edgar Prue, a police officer, and his employer, the City of Syracuse. Following his acquittal on arson charges, Prue brought this lawsuit against the City for intentional infliction of mental distress and malicious prosecution. On September 14, 1983, the City was granted summary judgment against Prue on its counterclaim for unpaid real property taxes amounting to $1,313.59.
This motion has to do with the City's method of collecting the unpaid taxes. By memorandum dated December 22, 1983, the City's attorney directed the Police department's Personnel Division to withhold a substantial portion of Prue's first three 1984 paychecks. The plan was to withhold $550.00 from the first two checks--about 60% of Prue's gross pay--and $371.22 from the third. A copy of this directive was sent to Prue's attorney "as a courtesy." Not wishing to "chill the Holiday spirit" by deducting the better part of plaintiff's pay just before Christmas, the Assistant Corporation Counsel deferred the first payroll deduction until January, 1984. In a letter dated December 27, 1983, plaintiff's attorney questioned the City's authority to deduct more than 10% of Prue's salary and further questioned the calculations on the judgment roll.
The Assistant Corporation Counsel says he explained to Prue's attorney by telephone that the City was exercising its common law right of set-off and that is why the statutory limitations did not apply. He also claims that he held out the possibility of altering the payment schedule if Prue could document how the City's plan would cause him financial hardship.
This motion to enjoin was brought when the City deducted the scheduled $550.00 from Prue's first 1984 paycheck.
The City says it has every right to offset Prue's tax debt against his current wages. Prue contends that the City cannot deduct more than the maximum amounts specified by State and Federal law for the collection of money judgments.
A creditor seeking to enforce a money judgment by means of wage deduction is normally limited to 25% of the debtor's disposable earnings under Federal Law (15 U.S.C. Section 1673) or any lesser percentage specified by State Law (15 U.S.C. Section 1677). In this State CPLR Section 5205(d)(2) exempts ninety percent of the judgment debtor's earnings. 1
Although Prue strenuously argues that the protective legislation just cited has supplanted the traditional common law right of set-off, the evidence for that proposition is lacking.
We start with the well-known presumption that no change in common law is intended unless the Legislature clearly expresses such a purpose (McKinney's Statutes Section 301). The State and Federal legislation places limits on judgment creditors who employ one of the judicial enforcement devices (e.g., garnishment, income execution). These statutes do not purport to abrogate the common law right of a creditor to utilize the non-judicial remedy of set-off (see Atwater v. Roudebush, 452 F.Supp. 622, 631). Absent clear-cut language to the contrary we must assume that the Legislature did not intend to impair a creditor's common law remedy.
However, the constitutional requirement...
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Smith v. Hudacs
...exists a valid claim subject to recoupment. See: Matter of Leirer v. Caputo, 181 A.D.2d 119, 586 N.Y.S.2d 976; Prue v. City of Syracuse, 124 Misc.2d 1036, 478 N.Y.S.2d 529. Unlike the petitioner in Leirer, supra, however, the instant petitioner was never given notice of the Comptroller's au......
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Prue v. City of Syracuse
...dismissed without costs as moot. (Appeal from Order of Supreme Court, Onondaga County, Hayes, J.--Wage Garnishment.) 124 Misc.2d 1036, 478 N.Y.S.2d 529. DILLON, P.J., and DOERR, GREEN, O'DONNELL and PINE, JJ., ...