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Civil FAQ's |
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General References: Civil Practice Law and Rules (CPLR) of New York State, sections 8011, 8012, 8013 & 8014;
County Law, sections 406, 407 & 650; Public Officers Law, sections 67, 70 & 205.
All fees & mileage are payable in advance and are per party to be served. Unless otherwise noted, add mileage. You must send the proper type and quantity of process indicated, with the correct fees and mileage, with a letter of instruction in order for the papers to be processed. Omissions, errors, illegibility, untimeliness, etc., will prevent your papers from being docketed with our office. Full and complete addresses including zip codes are required. Acceptable forms of payment include attorney check or money order. For all mandates, e.g., executions, evictions & court orders involving enforcement activity, at least one original with a handwritten ink signature must be delivered to us (CPLR Art.52, generally; NYCRR 130-1; etc.). Documents with the court's raised seal are acceptable. Generally, where copies are required, such as for income and property executions, photocopies are sufficient; the filing party must determine whether clerk or attorney certified copies are required in other cases. The Sheriff's Office does not supply legal forms, nor can we complete them. Some courts may supply forms while some do not. There are several suppliers or publishers of legal forms and you should consult the various telephone directories.
Fees are based on type of item to be served and mileage is based on the zip code of the location the item is to be served at - click here to see the mileage/zip code chart
Definitions:
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. The fee for a Civil Arrest is $45.00 plus mileage and we require the original warrant and two copies.
Eviction: RPAPL §221, Art.7 and RPL §233 (Eviction notice requires original plus three copies per person to be served. Eviction Warrant equires 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 $15.00 per document, per party plus mileage. If issued by a court and thus considered a mandate, the fees are $30.00 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 Ontario 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 Ontario 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 $105.00 per adult party, plus mileage. If more than one party is at same address, only one mileage is necessary.
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Family Court process: There are several types of legal paperwork which are issued from Family Court for service. Please call or e-mail our office for the service requirements for the specific paperwork you have to be served. Please have the paperwork available when you call as we will ask specific questions about it.
See special notice from our Civil Office regarding Income Executions
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 Ontario County and worked in Wayne County, the judgment creditor would first have to file with the Ontario County Sheriff and if the debtor defaulted, the Ontario County Sheriff will return the papers to the creditor who must now file them with the Wayne County Sheriff. The fees listed here are what the Ontario 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 Ontario County, 1st stage fees are paid in advance. The Ontario 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.
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Order of Seizure: An Order of Seizure is an order, signed by a judge, directing the Office of Sheriff to seize a specified chattel. The order is delivered to the Sheriff along with the papers on which it was granted, generally the plaintiff’s affidavit and an undertaking. After seizure, the property is held in the custody of the Sheriff for ten days. After ten days the chattel is turned over to the plaintiff unless the Sheriff receives further direction from the court. Contact the Civil Office for fees required as they differ according to the property seized.
Order to show cause: (Requires Original and two copies) An Order to Show Cause is issued by a judge and directs the defendant to appear in court to show cause as to why relief sought by the plaintiff should not be granted. The Sheriff’s Office requires the original and two copies along with appropriate fees and a viable service address.
Property execution: CPLR §52 (Requires Original and five copies, if multiple debtors, original plus three copies per party ) The property execution is an instrument used by the sheriff to seize (or "levy" upon), assets of the judgment debtor other than earnings, salary or wages. The type of property targeted will determine the type of execution to be used. For example, if tangible personal property like a motor vehicle, boat, machinery, and so on is to be levied upon, the "straight" or "demand" execution may be used. The sheriff will seize the property and liquidate it at a public auction, the proceeds paying the expenses associated with the sale (towing, storage, etc,) and the net proceeds applied to the satisfaction of the judgment. A commonly used execution is the "third party" execution or execution "with notice to garnishee." These are used where the asset is not tangible, like a bank account or rent payment. The sheriff will serve a copy of the execution on the bank or other appropriate party as directed and that party, the "garnishee," will send the money to the sheriff for processing. If real estate is the target for enforcement, a real property execution may be used. There are several forms available by several legal forms publishers and some executions can be used for different assets. For example, the personal property demand execution might also be used for real estate. Some "third party" executions are limited for use only with those types of levies. Some court clerks supply forms, some do not. In all cases, the judgment creditor is responsible for ensuring the forms are accurate and complete. Property executions can be issued (signed), only by a lawyer, court clerk or county clerk.
A. Original plus five copies. If multiple debtors, original plus three copies per party. Add mileage, If enforcement outside the home county is anticipated and a City, Town or Village Court judgment is involved, make sure you file the judgment transcript with the home county clerk first.
B. When the third party execution is used for a natural person judgment debtor you must advise us in writing whether or not the "notice to judgment debtor" provision of CPLR 5232(c) has been complied with (this concerns certain assets exempt from levy). If this form has not been sent within the previous year, the sheriff must do this. We must serve a copy of the execution and a notice for an additional $62.00 per party.
C. For all tangible property, the judgment creditor must provide documentation establishing the debtor's interest in the targeted property prior to any levy. If liens are involved, the name & address of the lienor should be provided to us as well as the status or outstanding balance due on any lien. For example, if a motor vehicle or boat is targeted, the NYS Dept. of Motor Vehicles can provide the title & lien information when you fill out and send to them form no. MV-15. Advances for anticipated expenses will be required; for example, an uncomplicated motor vehicle levy with a standard tow might be $500, where a boat with a trailer or a dump truck $1000 or more. Please call for estimates. Advances will also be necessary for processing real property.
These executions are used in conjunction with a court order or judgment that may involve both money and the possession of and delivery of personal or real property. We will need an original or clerk or attorney certified copy of the order, plus an original and five copies of the execution. Advances may be necessary. Add mileage.
NOTE: All litigants are strongly urged to seek competent professional legal counsel at all times. The Sheriff is not a lawyer and can only advise & inform parties as to what the Sheriff's rules & procedures, fees, etc. may be.
1. Bank account & similar levies pursuant to CPLR 5232(a)
The judgment creditor must indicate on the execution forms the full names and addresses, including zip codes, for the judgment debtor and the garnishee (bank, credit union, corporation, etc.). The Sheriff does not perform asset searches. The judgment creditor must identify the garnishee.
The Sheriff does not physically seize cash: the garnishee has ninety days to transfer the debtor's interest in property or assets in the custody of the garnishee or in debts owed by the garnishee to the debtor. If for any reason the garnishee cannot or will not effect a transfer, the judgment creditor is responsible for bringing the appropriate court action in the proper time and court. The Sheriff does not have any authority to compel a garnishee to do anything.
If the garnishee advises the Sheriff that it has no such property, assets or debts of the debtor, the Sheriff will close and return the execution with explanation.
Generally, a bank or similar entity will not comply with an execution if a party other than the judgment debtor has an interest in the targeted asset, for example, a joint bank account where a non-debtor is a joint owner. Usually the judgment creditor must apply for judicial determination of these issues.
2. Levies for rent, mortgage payments & similar assets.
Again, the judgment creditor must provide full names and addresses, including zip codes, of any garnishee to be served with the execution. Where installment, regular or irregular payments are targeted or expected by the judgment creditor, be advised that the Sheriff does not physically travel to the garnishee and make such collections. It is the garnishee's responsibility to transfer any such asset or debt to the Sheriff as they become due. Also, the ninety day time limitation referenced above is effective, so if the judgment is not expected to be fully satisfied, including interest, fees and poundage, within that time period, the judgment creditor must take the appropriate action in a timely manner to protect his interests & have that period extended.
Any disputes as to ownership interests, including joint interests, cannot be resolved by the Sheriff & usually requires the creditor to seek judicial determination.
NOTE: If you do not hear from us within 30 days of your filing the papers, you should call us at 585-396-4666 to speak with the officer assigned to your case.
3. Levies on "property capable of delivery" or tangible personal property.
Any personal property not exempt from application to the satisfaction of a money judgment can be levied upon by the Sheriff. The judgment creditor must provide documentation establishing the debtor's interest in the targeted property and must provide information sufficient for the Sheriff to properly identify it. Again, any disputes as to ownership interests will have to be resolved by judicial determination, before the Sheriff acts.
The Sheriff must actually physically seize the property. Accordingly, advances from the judgment creditor (in addition to any filing fees), will be necessary to cover anticipated expenses. For example, if a standard motor vehicle is to be levied upon, the Sheriff will need an advance for towing, storage and fees associated with a Sheriff's sale (usually $500). The type and quantity of property to be seized determines any advances needed.
The Sheriff intends to perform any such levies in a professional, timely & safe manner, so only those service providers or vendors who are competent, reliable & insured should be used. Further, the Sheriff as the court's neutral enforcement officer, requires all service providers to be neutral; that is, not associated, affiliated or related (either personally or by virtue of a business or other relationship), to any of the parties. The Sheriff is not obligated to use any particular service provider or vendor.
4. Real property.
The subject realty, or a portion of it, must be within Ontario County. The judgment must be a lien on such property. Ten years must not have elapsed since the entry of the judgment.
If the judgment was recovered for all or a portion of a mortgage debt, for the targeted realty, no execution sale can occur. If the judgment debtor is an individual (natural person), and the targeted realty is owned & occupied by him as a principal residence, court permission & direction is required before any execution sale can occur.
There are exceptions and variations to most of the foregoing and professional review & management by a lawyer is strongly advised. There will be costs associated with the processing of a real property execution sale in addition to the filing fees. Generally, the advance required is $500.00 per parcel, but such is dependent on publishing costs.
NOTE: Please see the previous sections regarding deeds, associated forms, format and acknowledgment notes.
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Subpoena: (Requires two copies of the subpoena) A subpoena is issued by a clerk of the court to a witness directing their appearance in court and often is accompanied by a witness fee. The Sheriff’s Office requires two copies of the subpoena with appropriate fees and a viable service address.
Summons: (Requires three copies of each summons) A summons is issued to direct a defendant to answer a complaint either in person or in writing to the court. The Sheriff’s Office requires three copies of each summons along with appropriate fees and a viable service address. Also include a letter is instruction directing the type of service to be made.
SHERIFF'S SALES
There is 1 upcoming Sheriff's Sale - Click name below for details
Jim's Pro Shop - Please note the date has changed to May 2nd
1. What is a Sheriff's Sale?
The Sheriff seizes or levies upon property for the purpose of satisfying a money judgment. This is done by liquidating the asset (that is, converting the asset into cash). This is accomplished by a "Sheriff's Sale" which is a public auction. The highest bidder pays his bid price to the Sheriff and takes custody & ownership* of the auctioned property. The Sheriff pays any service providers or vendors who assisted in the seizure (like towing & storage), from the sale proceeds, deducts the various fees & expenses associated with the levy & sale from the proceeds and applies the balance to the judgment. Note that these types of sales are not like the public auctions held by police departments where the property sold is usually property recovered from a crime, or simply lost but unclaimed by the true owner. The proceeds from those sales are turned over to the municipality.
* See #7 below.
2. When are Sheriff's Sales Conducted?
Another difference between a Sheriff's sale and police auction is that police auctions are usually held approximately once a year and Sheriff's sales are held throughout the year, at no set schedule. When the Sheriff conducts a sale depends upon when he seizes property; it is not the case where the Sheriff would seize property in connection with several or many cases and hold the property for one big sale. Sales are held "as needed." We might have three different sales in one week and then go four months without another
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3. Where are Sheriff's Sales Conducted?
All real estate execution sales are conducted at our office located 74 Ontario Street, Canandaigua, NY.
Personal property sales (cars, equipment, machinery, etc.), are conducted at the site where the property is actually located. So, for example, if we levy on a pickup truck and it is towed & stored at our impound area on County Complex Drive in Canandaigua, the sale will be held there.
4. Who can bid at a Sheriff's Sale?
Sheriff's sales are public auctions, so anyone can bid. The only exception is that members of the Ontario County Sheriff's Office may not bid. A person acting as agent for a company or corporation may bid on behalf of the company or corporation he represents. There are no sealed bids or phone bids. A party may bid on behalf of/as agent for, a party not present as long as the agent is present at the sale and the bidder has provided his authority to the Sheriff for such arrangement, in writing, prior to the sale.
Additionally, while anyone may attend and participate in the bidding, only those bidders who have registered to bid will be allowed to do so. This simply involves the bidder signing & printing his name, address & phone number on a ledger sheet provided at the sale.
5. What is the sale format?
A standard auction format is used and there is usually no reserve, opening bid, minimum bid, or buyer’s premium. Bidding must be in dollar increments. A judgment creditor or execution creditor cannot use his judgment as credit for bidding unless a court order granted & entered prior to the sale is delivered to the Sheriff prior to the sale.
6. What are the Terms of Sale?
All property is sold "as is, where is." No guarantees or warrantees are made, expressed or implied for anything sold at any sale, with respect to condition, value, use, operation, safety, marketability, re-sale, sufficiency or accuracy of description, authenticity, or any other matter not consistent with the obligations or duties of the Sheriff.
All sales are for cash only, U.S. currency. A minimum of 10% is due and payable at the conclusion of bidding. Cash is always required for a down payment. If the bid is unusually high, the balance might be paid with a bank cashier's check, certified funds or money order. Any other potential exceptions must be cleared prior to the sale.
If the full bid price is paid at the time of sale, the bidder should discuss with the deputy the release procedure to be able to take immediate possession of the property.
If a down payment is made, the remaining balance is due by 4:00 P.M. of that same day. Alternate arrangements must be pre-approved. The bidder cannot take possession of the property until he receives a written release from the deputy and the release will not be issued until the bid price is fully paid.
The expenses of the levy & sale will be deducted from the sale proceeds, if any. Where storage has accrued, it will be paid up to and including the day of sale. Thereafter, the purchaser is responsible for any charges. The purchaser is also responsible for making arrangements for the removal, transportation, security, safety, etc. of the purchased property.
When real property is sold, the purchaser must pay to the Sheriff a $22.00 deed fee at the time the deed & associated documents are delivered. The Sheriff does not charge or collect any taxes, fees or charges that may be due or assessed with respect to the sale, transfer or recordation.
Any other terms or requirements as may be expressed or implied by any rule or law are operational as long as such is not inconsistent with the Sheriff's duties and responsibilities as stated here or by law, at the time of sale, or other time. The preceding policies and procedures are subject to modification based upon innumerable variations and factors related to the property, court directions, etc.
7. What exactly is the high bidder purchasing?
The purchaser at a sheriff's sale is acquiring the interest of the judgment debtor in the property levied upon. If, for example, the interest of the judgment debtor in a motor vehicle is subject to a lien, then that is what the bidder is buying. For real property, if the debtor's interest is governed by a joint tenancy, for example, or other deed restriction, or is subject to a superior lien or encumbrance, then that is what the bidder is purchasing. The purchaser is acquiring the judgment debtor's "right, title & interest" in or to the property, whatever that may be. The Sheriff does not research such things nor make opinions or assertions relative to such matters.
8. What Documents will the purchaser receive from the Sheriff?
When personal property is sold, the successful bidder will receive a receipt for the payment of his bid; a release which will be directed to the agency, person or party having possession of the property, which authorizes the release of the property to the purchaser; and a certificate of sale, which transfers the judgment debtor's interest in and to the property, to the purchaser. Accompanying the certificate of sale will be a copy of the execution, which is the legal instrument authorizing & directing the levy and sale.
When real property is sold, the purchaser will receive a receipt for the payment of the bid price, a Sheriff's Deed and the several documents attesting to procedure.
9. How does one find out if & when a sale is scheduled?
A printed notice of sale is usually posted in three public places in the City of Canandaigua, typically at our office at 74 Ontario Street, the County Clerk's Office at 20 Ontario Street, Canandaigua, NY, and in the Ontario County Court Building.
For personal property sales, the law requires a notice of sale to be posted at three public places in the town or city where the actual auction takes place, at least six days before the sale. Such postings typically are done at the local town hall and other government buildings.
For real property sales, the law requires a notice of sale to be posted at three public places in the town or city where the parcel is situated, at least 56 days before the sale. Again, such postings are typically done at the local town hall and other government buildings. Additionally, the real property notice of sale will be published in a local newspaper on four different occasions.
The Sheriff does not maintain a mailing list. We will however post notices on this website.
There are currently no Sheriff sales scheduled
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