Attachment: This special proceeding is employed primarily where the plaintiff seeks a money judgment. It is a court order which directs the sheriff to levy upon property in which the defendant has an interest and to retain custody of that property until the court determines final disposition. The order must be directed to the sheriff and should specify whether the levy is to be made by service or seizure. The court index number must appear on the order. The order must be accompanied by an undertaking which must be for at least $500.00, must comply with CPLR Art.25, and be approved by the court. If the summons & complaint is to be served by the sheriff, sufficient copies must be delivered to the sheriff. The plaintiff must provide particular direction as to what property is to be levied upon, its location, and documentation establishing the defendant’s interest in it. Advances for moving, storage, etc. may be necessary.
NOTE: If the order is granted ex-parte, particular attention must be paid to the “confirmation” procedure and the order of attachment must include specific direction relative to it; an order omitting this information will not be accepted or executed by the sheriff.
NOTE: If real property is to be levied upon, the plaintiff must deliver to the sheriff, in addition to the above papers, an original and two copies of a “notice of levy” which complies with CPLR 6216, for each parcel to be levied upon. This is required to be filed by the sheriff with the county clerk who requires his own filing fees. Accordingly, the plaintiff must also provide advance payment for this filing; such can be accomplished by separate check or, when possible, by accompanying a deputy to the clerk’s office. The clerk will be given the original & two copies of the notice, two will be returned stamped by the clerk to the deputy who will retain one and deliver the 2nd to the plaintiff. Our fee is
Civil Arrest: (Requires original plus two copies) Generally speaking, a civil arrest warrant is issued by a court and signed by a judge when a defendant fails to comply with a summons or an order of the court. The warrant must be directed to the Sheriff of the county in which the warrant will be executed. The defendant will be brought before the court which issues the warrant. We require the original warrant and two copies and the appropriate fees. Contact the Civil Office for fees required.
Civil Process: Legal process not issued by a court or court clerk but which serves a legitimate and required function in the prosecution of defense in an action or proceeding can be delivered to the sheriff for service on a party. Generally, the cost is $17.00 per party, plus mileage and four copies per party should be delivered to the sheriff. The filing party is responsible for making sure the documents are correct & proper and providing the sheriff with a letter of instruction which shall include information sufficient to effect valid and timely service. Once served, an affidavit of service will be provided to the filing party. Some examples include a summons (with or without a complaint), and the subpoena. The service of multiple processes usually means that multiple service fees will be charged.
Eviction: RPAPL §221, Art.7 and RPL §233 (Eviction notice requires original plus three copies per person to be served. Eviction Warrant requires one original, and then four copies for each party to be evicted)
A. Article 7 of the RPAPL addresses the common landlord-tenant summary proceeding. This proceeding is usually commenced with a notice of petition and petition. These papers must be served on the respondent at least five but no more than twelve days before the court hearing. Accordingly, please deliver such process to the sheriff at least fourteen days before the hearing date. Three copies per party to be served are required. Add mileage; multiple parties at same address, one mileage.
B. Other documents to be served in connection with this type pf proceeding such as "3 day" or "30 day" notices and the like, if not issued by a court or its clerk, the fees are $17.00 per document, per party plus mileage. If issued by a court and thus considered a mandate, the fees are $47.00 per document, per party plus mileage. Send three copies per party to be served. If there are any time limitations, you must make us aware of them.
C. Eviction/Removal. Please advise us if there are any concerns for officer safety such as violence, dogs, criminal activity, hazardous materials, etc., or if elderly, very young or infirm persons are involved.
1. RPAPL §749 Warrant of Eviction. The sheriff is required to give a written 72-hour notice to the respondent/tenant prior to any physical removal. The sheriff will serve a copy of the warrant along with the notice. The 72-hour period, once commenced, runs uninterrupted: weekends & holidays are counted. Eviction must occur between sunrise & sunset and cannot be executed on a Sunday or other Sabbath. The landlord or his representative should communicate with assigned deputy for scheduling of removal.
2. Mobile/manufactured homes. If not in a manufactured home park, the 72-hour rule applies. RPL 233 defines a manufactured home park as “…a contiguous parcel of privately owned land which is used for the accommodation of three or more manufactured homes occupied for year-round living.” If in a manufactured home park, the sheriff must give the tenant a written 90-day notice. The 90 days can be reduced to 30 days if ordered by the court; such is not automatic. The manufactured home must be removed from the lot in order for the Otsego County Sheriff to return the warrant of eviction as executed. It is the landlord/petitioner's responsibility to ensure that the warrant specifically directs any reduced time; otherwise, the 90-day rule applies.
3. Tenant(s) and their personal property must be physically removed from the premises described in the warrant. There is no "lockout." The landlord must provide proper moving & storage, off site, by insured, competent professionals. Removed goods are not placed curbside. This helps protect all parties from loss, theft or damage and reduces the exposure to such claims.
4. RPAPL 221 Order for Possession or Writ of Assistance. These are issued in several circumstances, most commonly in conjunction with a foreclosure action. As a practical matter, they are treated and processed similar to the RPAPL 749 warrant: the sheriff will serve a copy of the order & 72 hour notice on the defendant and if a physical removal is necessary, the plaintiff will make the appropriate moving & storage arrangements and consult with the assigned deputy for scheduling. There is no sunrise to sunset provision for execution of the order but the prohibition against service or execution on a Sunday or Sabbath is effective.
5. In all cases, the warrant or order must be specifically directed to the Sheriff of Otsego County. We will need one original, and then four copies for each party to be evicted (as listed in the warrant or order). The fees are $107.00 per adult party, plus mileage. If more than one party is at same address, only one mileage is necessary.
Income Execution CPLR §5231 (Requires Original and four copies): This instrument, commonly known as a wage garnishment, is used to satisfy a money judgment from the debtor's earnings. There are two stages. In the first stage, the income execution is served by the sheriff on the judgment debtor who must begin making voluntary installment payments to the sheriff. The income execution must be filed with the sheriff where the debtor resides. Therefore, the creditor must have a current correct home address for the judgment debtor. If the debtor fails to make the required voluntary payments, the second stage begins. The income execution will now be served by the sheriff on the debtor's employer who will deduct a percentage from the debtor's earnings and remit it to the sheriff. The income execution must be filed with the sheriff in whose county the employer is located. So, for example, if the judgment debtor lived in Otsego County and worked in Delaware County, the judgment creditor would first have to file with the Otsego County Sheriff and if the debtor defaulted, the Otsego County Sheriff will return the papers to the creditor who must now file them with the Delaware County Sheriff. The fees listed on the Fee & Mileage Chart are what the Otsego County Sheriff charges; you must call other sheriffs for their rates. All fees are paid at the time the papers are filed. If the debtor lives & works in Otsego County, 1st stage fees are paid in advance. The Otsego County Sheriff will bill you for second stage fees and will levy on the wages as soon as those fees are received.. The income execution can be issued (or signed), only by a lawyer, court clerk or county clerk. We cannot serve a P.O. Box.
- Whenever more than one Sheriff (or county) is expected to be involved and the judgment is from a City, Town or Village Court, the creditor must first obtain from the original court a transcript of the judgment. This document must then be filed with the County Clerk's Office (the "home" county clerk). After this is done, the income execution can be issued and it must reference that the transcript was in fact filed with the county clerk.
- All executions (income or property) can only be issued (signed) by the clerk of the court where the judgment was entered, the county clerk of the home county, or a lawyer licensed to practice in NY State.
NOTE FOR JUDGMENT CREDITORS: You must indicate on the income execution forms the full name and address, including zip code, of the judgment debtor & employer. If the debtor is no longer employed by the named employer, the income execution becomes ineffective & is returned to you. The Sheriff does not perform any searches or follow-ups with respect to the debtor's residence, place of employment and so on.
NOTE: All litigants should seek professional competent legal counsel at all times. The Sheriff is not your lawyer. The Sheriff can only advise & inform parties as to those procedures and rules related to the Sheriff’s duties.