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Saturday, August 23, 2008

CPLR 5241 Amended. New Proceeding No Longer Necessary to Assert Mistake of Fact

Until now, New York law required that where an income execution is served on a debtor, the debtor had 15 days to reply and, where the income execution contained an error as defined in CPLR 5241(a)(8), to bring a petition under CPLR Article 4 for mistake of fact. The CPLR Advisory Committee believed that it should not be necessary that a new proceeding be brought to challenge an error in an income execution and recommended removal of the burden of commencing a new, separate, enforcement proceeding, together with payment of a new index number fee and fee for a request for judicial intervention, solely to correct the error. The last sentence in CPLR 5241(e) was amended to require that, in actions to enforce a money judgment, applications to assert a mistake of fact in Supreme Court be made by order to show cause or motion on notice to the creditor in the same action in which the order or judgment sought to be enforced was entered. This petition is in aid of a court order, i.e., either a Supreme Court order in a matrimonial proceeding or a Family Court order in a support proceeding. Laws of 2008, Ch 94, effective May 27, 2008.