Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and motion granted, in accordance with the following memorandum: The order of Special Term must be reversed and the income execution stricken. The judgment creditor's attorney failed to comply with several requirements of CPLR 5241 when he issued the income execution herein. The record indicates that the income execution was served on the State Department of Labor at its Buffalo office rather than its Albany office (see, CPLR 5241 [i]), that it was served without notice to the judgment debtor (see, CPLR 5241 [b]) and that it failed to include a notice of the limitations upon deductions set forth in CPLR 5241 (g) (see, CPLR 5241 [c] [8]). As a result, the entire sum of the judgment debtor's unemployment insurance benefits was remitted to plaintiff's attorney, without regard to the limitations set forth in CPLR 5241 (g).
CPLR 5241 was enacted to provide an expeditious method of enforcing support orders but it did not intend to eliminate the due process rights of a judgment debtor (see, Shutt v Shutt, 133 Misc.2d 81, 82-83). Thus, while defendant's asserted "mistake of fact" is not specifically within that statutory definition (CPLR 5241 [a] [8]), an income execution is not justified in this case because plaintiff's attorneys failed to comply with the notice and levy requirements of the statute (see, Shutt v Shutt, supra, at 84).