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Civil Process Division

FEE SCHEDULE FOR THE SERVICE & EXECUTION OF
LEGAL PAPERS RELATED TO CIVIL LITIGATION

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. IMPORTANT - PLEASE READ to ensure prompt, proper filing & service: 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 & 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. The Erie County Clerk's Office supplies some forms in certain situations. There are several suppliers or publishers of legal forms and you should consult the various telephone directories. NOTE: We cannot serve a P.O. Box. 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. Brief Explanation & Fees for Common Civil Processes and Instruments 1. Income execution, CPLR 5231.      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, 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 Erie County and worked in Niagara County, the judgment creditor would first have to file with the Erie County Sheriff and if the debtor defaulted, the Erie County Sheriff will return the papers to the creditor who must now file them with the Niagara County Sheriff. The fees listed here are for the Erie 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 Erie County, both 1st and 2nd stage fees are paid in advance. The income execution can be issued (or signed), only by a lawyer, court clerk or county clerk. We cannot serve a P.O. Box. First Stage Only $49.00 includes mileage Original & five copies Second Stage Only $47.00 includes mileage Original* & five copies Both Stages $86.00 includes mileage Original & five copies *Make sure the original is indorsed by the residence county sheriff and the judgment balance/interest date are properly adjusted. ·  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: For information regarding the rules & procedures for making payments on an income execution and other pertinent file management information, please scroll down to section two. Back to Top 2. Income execution for support, CPLR 5241      This is similar to the "regular" income execution mentioned above, but simpler and more direct. Also, the maximum percentage amount payable by the debtor pursuant to this type of income execution is usually higher than for the CPLR 5231 income execution. Accordingly, while a support creditor may use either device, this type is generally preferred. The law does not require these to be served or managed by the sheriff, although the sheriff may do so. These can be served by the creditor or their representative directly. Further, the payments are sent to the creditor directly or their representative or support collection unit as appropriate. Payments made on this instrument are not sent to or processed by the sheriff. Therefore, the sheriff can simply serve the 5241 income execution on the appropriate party, but will not manage the payments. Serve on debtor only $32.00 plus mileage Original & three copies Serve on employer only $32.00 plus mileage Original & three copies Back to Top 3. Property execution, CPLR Art.52      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. The Erie County Clerk's Office supplies forms if the judgment has been docketed with them. 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. CPLR 5232(a) Third party $40.00 CPLR 5232(b) Straight/demand $100.00 CPLR 5236 Real Property $70.00      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 $800, where a boat with a trailer or a dump truck $1500 or more. Please call for estimates. Advances will also be necessary for processing real property executions, usually $1000 per parcel. Back to Top 4. Execution, CPLR 5102      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. Real property $95.00 Personal property $85.00 Back to Top 5. Eviction, RPAPL 221, Art.7 and RPL 233      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. Add mileage; multiple parties at same address, one mileage. RPAPL 735 notice of petition & petition $62.00      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 mobile home park, the 72 hour rule applies. If in a mobile 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. 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 Erie 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 party, plus mileage. If more than one party is at same address, only one mileage is necessary. Back to Top 6. Order of Seizure, CPLR Art.71      This special proceeding is brought to test the right to possession of personal property. There are several components of this order, the first being the order itself. This is signed by a judge and it must be directed to the sheriff and order the sheriff to seize one or more items of personal property as specified in the order & retain custody until the court decides which party should be awarded custody. The second portion is the undertaking which must be for at least twice the value of the property to be seized, must comply with CPLR Art.25, and must be approved by the court. The third portion is the "papers upon which the order was granted" and the final is the summons & complaint. If the summons has already been served, the plaintiff must provide the sheriff proof of service. The plaintiff must provide advances for moving, towing, storage or whatever may be necessary to comply with the order in a professional, safe and expedient manner. Please make sure the court index number appears on the order of seizure & associated documents. NOTE: If the order was granted ex-parte, particular attention must be paid to the "confirmation" procedure and the order of seizure must include specific direction relative to it; an order omitting this information is invalid and will not be accepted or executed by the sheriff. NOTE: Use of force by the sheriff is permitted only if a "break & enter" provision is specifically included in the order of seizure. Execute against one party $137.00 Each additional $57.00 If summons to be served $17.00 per party Back to Top 7. Attachment, CPLR Art.62      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, 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. Execute and levy $72.00 Additional levy, each $57.00 Serve defendant, each $17.00 If summons to be served $17.00 per party 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 $87.00 Back to Top 8. Civil Arrest, Judiciary Law Art.19      This concerns various contempt of court matters and they may involve the Sheriff's Civil Division. They are civil contempts as distinguished from criminal contempts. The primary basis or reason for bringing a contempt of court proceeding is when a party has disobeyed a court order or direction, usually in connection with an enforcement device. Perhaps the most common example is a refusal to comply with a subpoena. For reference, please see CPLR 2308, 5104, 5210, 5250 & 5151.      The proper instrument employed in these matters is a warrant of commitment. This is issued by a court and must be directed to the sheriff and must explicitly direct the sheriff to arrest the identified person and bring him before the court. The court index number must appear on the warrant and we require the original warrant plus two copies. Arrest one person     $57.00    If committed (with subsequent discharge)    $20.00 additional    Back to Top 9. Orders & Mandates      There are a wide variety of legal processes that are issued by a court or its clerk, other than those listed previously, which are granted or issued in a wide variety of circumstances. As a general rule, the fees for the service of such orders or mandates are $47.00 per party, plus mileage. Three copies per party should be delivered to the sheriff along with a letter of instruction which shall include specific and helpful instructions needed to effect valid & timely service. Frequently the court directs a specific manner of service and there may be specific time limitations within which service must be made. The filing party is responsible for making sure the correct number of copies are delivered to the sheriff and in a timely fashion. Usually, a three week lead time will be sufficient. Examples of this type of process include the "order to show cause" or a "judgment." Once the papers are served, an affidavit of service will be provided to the filing party. The service of multiple processes usually means that multiple service fees will be charged: SEE ITEM#12, MISCELLANEOUS. Back to Top 10. Civil Process      Legal process not issued by a court or court clerk but which serves a legitimate and required function in the prosecution or 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: SEE ITEM #12, MISCELLANEOUS. Back to Top 11. Realty Deeds pursuant to court order, CPLR 5107      Pursuant to a court order, usually in a matrimonial action, the Sheriff will be required to transfer one party's interest in real estate to another. The Sheriff requires an original or certified copy of such an order. The order must contain specific & particular directions to the Sheriff: what is he to do & with respect to what parcel(s) and what type of deed is to be utilized.      A proper deed, completed except for the execution date, Sheriff's signature and acknowledgment must be delivered to us, for each parcel, along with any other properly completed forms (e.g., NY State TP-584 Combined Transfer Gains Tax Affidavit, NY State RP-5217 Transfer Report), for each parcel. The cost is $67.00, plus $22.00 for each additional deed if pursuant to the same order. No mileage. Such are usually processed in ten to twenty days of receipt. ·  Please make sure each document indicates that the Sheriff is effecting such transfer "As Sheriff of Erie County on behalf of (original grantor) pursuant to the order of the Hon. (name & court) entered (date) , Index no. ." NOTE: Please review RPL 309-a(1). The Erie County Clerk requires Sheriff's Deed acknowledgments to be worded and formatted as follows: State of New York:  ) County of Erie:        :   SS.: City of Buffalo:        ) On the_________day of____________________________, before me the undersigned, personally appeared______________________, Sheriff of Erie County, personally known to me or proved to me on the basis of satisfactory evidence to be____________________, Sheriff of Erie County, whose name is subscribed to the within instrument and he acknowledged to me that he executed the same in his capacity as Sheriff of Erie County. Back to Top 12. Miscellaneous      Please be aware that multiple documents or process to be served usually means that multiple service fees will be required. Some examples: If a party is to be served a summons & complaint along with a lis pendens (assume both are New York State Court processes), the fee would be $32.00, plus mileage ($15 for the summons and $15 for the lis pendens plus a $2 notary fee). If two parties are to be served both papers, the fee would be $64.00 plus mileage. In a Surrogate Court Action, if a party is to be served a citation along with a copy of a will, then the fee would be $62.00 plus mileage [$45.00 for the citation (which is essentially an order to show cause), & $15.00 for the will (which is not issued by the court) plus a $2 notary fee.] A good benchmark to rely on when determining various combinations might be to consider which documents are to be included in any proof of service. If a party must establish that a certain document was served, and thus noted on the proof of service, then a service fee will be charged. If ten different papers are to be served there will be ten service charges. Back to Top SECTION TWO MILEAGE SCHEDULE 1. The Sheriff is entitled to be paid mileage, in advance, for actual and anticipated round trip travel associated with the service or execution of civil process. With the exception of CPLR 5231 income executions where the postage is already included in the service fee, the mileage must be added to the service fee as noted in the previous section. 2. A general rule to follow states that if multiple processes are to be served at the same address, only one mileage is charged per attempt or round trip travel. For example, if an order to show cause and a summons are to be served on one party at one address, there will be two service charges (one for the order and another for the summons), but only one mileage. This also applies where one or more processes are to be served on two or more parties at the same address. 3. When determining the correct mileage, defer to the zip code. For example, the zip code for the Town of West Seneca is 14224 with mileage of $15.00. It would not be accurate to refer to this location as "Buffalo 14224." Also note that there are several municipalities that encompass two or more zip codes. You must research the precise street location to determine the correct zip code and then determine the proper mileage. For example, the Town of Amherst encompasses seven different zip codes and if one were to simply address the process to "Amherst 14221" and the location is actually in "East Amherst 14051," your papers will be returned for additional mileage. This causes delays. Please check with the U.S. Postal Service for accurate zip codes & street locations and you may call us at (716)858-6253 or (716)858-7606 for assistance. We cannot serve a P.O. Box. LOCALITIES ZIP CODES MILEAGE CHARGE ($) Akron, Village 14001 27.00 Alden, Town 14004 26.00       Amherst, Town:        East Amherst 14051 23.00    Eggertsville 14226 14.00    Getzville 14068 21.00    Snyder 14226 11.00    West Amherst 14228 24.00    Williamsville, Village 14221 13.00 Angola, Town 14006 24.00 Aurora, Town 14052 28.00 Blasdell, Village 14219 10.00 Boston, Town 14025 27.00 North Boston 14110 21.00 Bowmansville 14026 13.00 Brant, Town 14027 30.00 Buffalo, City 14201, 14202 5.00    14203, 14204 All others 5.00 8.00 Chaffee 14030 37.00 Cheektowaga, Town 14225/14227 13.00 Clarence, Town 14031 22.00 Clarence Center 14032 32.00 Colden, Town 14033 29.00 Collins, Town 14034 43.00 Collins Center 14035 43.00 Concord, Town 14141 36.00    East Concord 14055 36.00 Depew, Village 14043 13.00 Derby 14047 17.00 East Aurora, Village 14052 28.00 Eden, Town 14057 21.00 Elma, Town 14059 18.00 Evans, Town 14006 29.00 Farnham 14061 39.00 Gardenville 14227 10.00 Glenwood 14069 32.00 Gowanda, Village 14070 43.00 Grand Island, Town 14072 14.00 Hamburg, Town/Village 14075 21.00 Helmuth 14079 40.00 Holland, Town 14080 35.00 Irving (Erie Co.Only) 14081 38.00 Kenmore, Village 14217 8.00 Lackawanna, City 14218 10.00 Lakeview 14085 14.00 Lancaster, Town/Village 14086 21.00 Lawtons 14091 28.00 Marilla, Town 14102 24.00 Newstead, Town 14001 31.00 North Collins, Town/Village 14111 34.00 Orchard Park, Town/Village 14127 21.00 Sardinia, Town 14134 43.00 Sloan, Village 14212 8.00 Springville, Village 14141 35.00 Tonawanda, City 14150 13.00 Tonawanda, Town 14150 11.00 Wales, Town West Falls 14169 14052 24.00 26.00 West Seneca 14224 15.00 SECTION THREE RULES & PROCEDURES FOR PAYING ON AN INCOME EXECUTION AND INFORMATION PERTINENT TO FILE MANAGEMENT 1. Do payments have to be made to the sheriff pursuant to an income execution? Yes.  An income execution is a legal & valid money judgment enforcement instrument. Disobedience or interference may result in subjection to contempt of court proceedings as well as liability for other damages. Some examples of non-compliance include not paying the proper amount, not paying in a timely fashion and not remitting to the proper officer (that is, the sheriff). 2. What if the judgment debtor is already paying on a previous income execution? Generally, one may have multiple income executions issued against him, but only one is active at a time. When the first is fully paid, then he would begin on number two, and so on. Income execution number two, three, etc. are still valid but would be considered inactive. There are exceptions to this rule, so if there are any doubts or questions, please consult with your legal counsel. 3. What if the judgment debtor is paying on a support or maintenance order? A support or maintenance order has priority over all other processes. However, there are circumstances when a support order and income execution can be active at the same time. Some of the rules are explained below, but you should always consult with your legal counsel if you have any questions or doubts. Generally, the income execution will still be valid but considered inactive. This is true even if a support order is issued after an income execution has been issued. If you are paying on a support or maintenance order and you receive an income execution, you have the responsibility of notifying our office and providing copies of the order. The opposite is also true: if you are paying on an income execution and thereafter are required to make payments pursuant to a support or maintenance order, you must advise us & provide documentation. If you don't do this, the income execution may be served on your employer. 4. Are there maximum or minimum amounts to be paid?      There are three equations used to determine how much is to be paid.      No.1. 10% of the gross earnings.      No.2. 25% of the disposable earnings.      No.3. The difference between 25% of the disposable and 30 times the current federal minimum hourly wage.      Whichever is least is the statutory maximum to be paid. You may pay more voluntarily, but you do not have to. ·  You must have weekly disposable earnings that equal or exceed thirty times the current federal minimum hourly wage. If you do not, no payment is required pursuant to the income execution. It is possible, based on earnings, to be required to pay one week but perhaps not for another. If you feel you may be exempt from making a payment because you do not meet this minimum threshold, provide us with documentation and consult your legal counsel. ·  If you have a support or maintenance order and the amount required to be paid under that order equals or exceeds 25% of your disposable income, no payment is required to be made on the income execution. But, if the support amount is less than 25%, then the income execution is to be paid on, but the combined payments cannot exceed 25% of the disposable. For example, say the disposable is $200 per week. 25% is $50. If support of $55 is due, the income execution does not receive a payment. If the support is $40, the income execution payment is $10. Again, you should consult with your legal counsel to resolve any questions or doubts. 5. What does "disposable" earnings mean?      Disposable is what remains from gross earnings when those deductions required by law are subtracted. Examples include federal & state taxes, FICA, medicare, etc. It normally does not include deductions that are voluntary such as union dues, charity, any direct deposits, sunshine clubs, Christmas or other savings plans or clubs, investment plan deductions and so on. Disposable can be distinguished from "net" or "take home" pay in that net or take home is what one actually puts in his pocket & would not, obviously, include earnings that were deducted for a charity or savings club. ·  NOTE: Gross earnings includes salary, wages, tips, commissions, bonus, overtime, holiday pay, back pay, premiums, etc. 6. When are payments to be made?      When you first receive the income execution you have twenty calendar days to send the first payment. Failure to do so results in default and the income execution can then be served on your employ