98 Misc. 2d 307 | N.Y. App. Term. | 1978
OPINION OF THE COURT
Order entered May 29, 1978 (Sherman, J.) modified by granting petitioner’s application for a turnover order and directing respondent to comply with petitioner’s income execution only to the extent that the judgment debtor’s disposable earnings are not diminished by more than 25%; as modified, affirmed, with $10 costs to the appellant.
As we construe title III of the Consumer Credit Protection Act (US Code, tit 15, §§ 1671-1677), the maximum amount which may be garnished from the earnings of an individual for any workweek is 25% of his "disposable earnings” (i.e., after-tax earnings [see US Code, tit 15, § 1672, subd [b]), except in the case of an order for support, in which event the maximum is 50% of disposable earnings, and up to 60% where the individual receiving support is a spouse or dependent child (US Code, tit 15, § 1673). In the case before us, a payroll deduction order for support issuing out of the Family Court was served upon respondent (employer of petitioner’s judgment debtor) long before the service of petitioner’s 10% income execution (CPLR 5231, subd [b]). Since the order of support takes priority over the income execution (Personal Property Law, § 49-b), no amount may be withheld pursuant to that execution under the formula set forth in the Consumer Credit Protection Act unless, and except to the extent that, the support order does not absorb the 25% of the debtor’s disposable earnings which is susceptible to garnishment (US Code, tit 15, § 1673, subd [a]; Marshall v District Ct. for Forty-First-b Judicial Dist. of Mich., 44 F Supp 1110).
The above view of the Federal legislation is espoused by the Secretary of Labor, who is charged with the enforcement of its provisions (US Code, tit 15, § 1676), and whose interpretation, if not irrational or unreasonable, is to be accorded great weight (Matter of Howard v Wyman, 28 NY2d 434, 438; Brennan v Kroger Co., 513 F2d 961). Petitioner’s contention that payroll deductions required under a support order should not be included when computing the percentage reduction of a
Concur: Riccobono, J. P., and Tierney, J.; Hughes, J., not participating.