NEW YORK

Has state opted out of federal bankruptcy exemptions? No. Although N.Y. Debt. & Cred. Law § 284 (McKinney) provides that debtors domiciled in New York are not permitted to use the federal exemptions under section 522(d) of the Bankruptcy Code, and this provision has not been repealed, a more recent statute, N.Y. Debt. & Cred. Law § 285 (McKinney), provides that an individual debtor in a bankruptcy case may opt to use the exemptions provided under section 522(d) of the Bankruptcy Code in lieu of New York exemptions. In re Santiago-Monteverde, 24 N.Y.3d 283, 289, 22 N.E.3d 1012, 1015 (N.Y. 2014) (“domiciled in New York have the option of choosing either the federal exemptions or New York exemptions”).

Is opt out limited to residents or domiciliaries of the state? Not applicable. However, to the extent that N.Y. Debt. & Cred. Law § 282 (McKinney) is applicable, it applies only to domiciliaries: “[A]n individual debtor domiciled in this state may exempt only [property specified in this statute].” See In re Crandall, 346 B.R. 220 (Bankr. M.D. Fla. 2006) (because debtor was not domiciled in New York on petition date, she could not use New York exemptions).

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: N.Y. C.P.L.R. 5205(d), 5205(e), 5231, 5252, 5241 (McKinney); N.Y. Soc. Serv. Law § 137-a (McKinney).

Scope: Earnings for personal services.

Amount: Thirty times the federal or state minimum wage, whichever is larger, is exempt. N.Y. C.P.L.R. 5231 (McKinney). 90% of earnings rendered 60 days before or any time after delivery of execution to the sheriff or a motion to apply the debtor’s earnings to a judgment is exempt (N.Y. C.P.L.R. 5205(d)(2) (McKinney)); wages received in addition to public assistance are exempt. Garnishment forbidden if debtor is receiving public assistance or would qualify for public assistance if the amount of the garnishment were subtracted from his or her wages. N.Y. Soc. Serv. Law § 137-a (McKinney). The pay of enlisted personnel and non-commissioned officers in the military is completely exempt, except for family support debts. N.Y. C.P.L.R. 5205(e) (McKinney). Employer may not discipline or refuse to hire employee because of wage execution. Private right of action for six weeks lost wages, civil penalty of $500 ($1000 for repeat offense), court may order reinstatement or hiring. N.Y. C.P.L.R. 5252 (McKinney). Private right of action if employer withholds income after being formally notified by social services official that worker is receiving or eligible for aid. N.Y. Soc. Serv. Law § 137-a (McKinney).

Survival after payment/deposit: Not specified in exemption statute.

Waiver: Not specified in exemption statute.

Homestead: N.Y. C.P.L.R. 5206, 5253 (McKinney).

Amount: Beginning in 2012, amounts will be adjusted at three-year intervals for changes in the consumer price index. N.Y. C.P.L.R. 5253 (McKinney). Amount varies by county. $170,825 in Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester, and Putnam. $142,350 in Dutchess, Albany, Columbia, Orange, Saratoga, and Ulster. $85,400 in all other counties. Applies to the following types of property owned as a principal residence: a lot with a dwelling, a cooperative apartment, a condominium, or a manufactured home, unless the judgment was recovered wholly for the purchase price. N.Y. C.P.L.R. 5206(a) (McKinney). Security deposit for rental of residence and utility deposits for residence are also exempt.

Procedural requirements: None specified in exemption statute.

Special provisions: Proceeds from a judgment sale are exempt for one year. Protection continues after owner’s death, to protect surviving spouse or minor children. N.Y. C.P.L.R. 5206(b) (McKinney). Exemption lost if premises not used as residence, except for up to one year absence if homestead is damaged or destroyed. N.Y. C.P.L.R. 5206(c) (McKinney).

Waiver: Not specified in exemption statute.

Tangible personal property: N.Y. C.P.L.R. 5205, 5253 (McKinney); N.Y. Debt. & Cred. Law §§ 282, 283(1) (McKinney).

Household goods: All stoves, home heating equipment, and fuel for 120 days (N.Y. C.P.L.R. 5205(a)(1) (McKinney)); one sewing machine; religious texts, family pictures, school books, other books up to $575 (N.Y. C.P.L.R. 5205(a)(2) (McKinney)); family pew (N.Y. C.P.L.R. 5205(a)(3) (McKinney)); domestic animals and feed for 120 days to a value of $1150; a 120-day supply of food for the debtor and family (N.Y. C.P.L.R. 5205(a)(4) (McKinney)); all wearing apparel, household furniture, one refrigerator; one radio; one television; one computer and associated equipment; one cell phone, necessary crockery, tableware, and cooking utensils. N.Y. C.P.L.R. 5205(a)(5) (McKinney). Exemption amounts will be adjusted for inflation at three-year intervals, for changes in consumer price index. N.Y. C.P.L.R. 5253 (McKinney). Exemption for these and other tangible personal property items is capped at $10,000 in the aggregate in bankruptcy. N.Y. Debt. & Cred. Law § 283 (McKinney).

Motor vehicles: $4550; if equipped for use by disabled debtor, $11,375. Not applicable to debts for family support. N.Y. Debt. & Cred. Law § 282(1) (McKinney); N.Y. C.P.L.R. 5205(a)(8) (McKinney).

Tools of trade: $3400. N.Y. C.P.L.R. 5205(a)(7) (McKinney).

Clothing and jewelry: All wearing apparel (N.Y. C.P.L.R. 5205(a)(5) (McKinney); a wedding ring; watch, jewelry, and art up to $1150. N.Y. C.P.L.R. 5205(a)(6) (McKinney).

Miscellaneous and wildcard: 90% of any unpaid proceeds from the sale of milk if the debtor is a farmer (N.Y. C.P.L.R. 5205(f) (McKinney)); security deposits (N.Y. C.P.L.R. 5205(g) (McKinney)); health aids and guide dogs (N.Y. C.P.L.R. 5205(a)(5), 5205(h)(1) (McKinney)); residential rental or utility security deposits. Non-bankruptcy, in lieu of homestead, $1150 in personal property, cash, or bank account. N.Y. C.P.L.R. 5205(a)(9) (McKinney). Beginning in 2012, amounts will be adjusted at three-year intervals for changes in the consumer price index. New amounts are published on the Department of Financial Services website, under Industry Guidance. Bankruptcy only: Wildcard of the lesser of $11,375 or the amount of certain unused exemptions, for cash, defined to include bank accounts and tax refunds). N.Y. Debt. & Cred. Law § 283 (McKinney).

Waiver: Not specified in exemption statute.

Benefits, retirement plans, insurance, judgments, and other intangibles: N.Y. C.P.L.R. 5205, 5222 (McKinney); N.Y. Debt. & Cred. Law §§ 282, 283(1) (McKinney).

Public benefits: Non-bankruptcy: Note provisions above, forbidding garnishment. Bankruptcy: Right to receive Social Security, unemployment, veterans’ benefits, local public assistance. N.Y. Debt. & Cred. Law § 282(2) (McKinney).

Pensions, retirement plans, and annuities: Any property held in trust for debtor and 90% of income from such trusts—this includes certain retirement plans. Note that there are separate provisions for retirement accounts in bankruptcy exemptions. N.Y. Debt. & Cred. Law § 282(2) (McKinney).

Insurance, judgments, or other compensation for injury: Judgment for loss or destruction of exempt property remains exempt for one year after judgment is satisfied (N.Y. C.P.L.R. 5205(b) (McKinney)); certain life insurance, including right to accelerate payment or enter into viatical settlement as provided for in insurance law. N.Y. C.P.L.R. 5205(i) (McKinney). In bankruptcy, may also exempt right to receive disability, illness, or unemployment benefits; crime victim reparations; wrongful death to extent necessary for support; $8550 personal injury (not including pain and suffering or actual pecuniary loss); loss of future earnings to extent needed for support. N.Y. Debt. & Cred. Law § 282(3) (McKinney).

Bank accounts: A bank account deposit up to 240 times the state or federal minimum hourly wage, whichever is higher, is exempt except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents. N.Y. C.P.L.R. 5222 (McKinney). If bank account contains reasonably identifiable statutorily exempt funds that have been electronically or direct deposited within 45 days preceding the service of a restraining order, $2850 (adjusted every three years for inflation, beginning in 2012) in the debtor’s account is exempt. N.Y. C.P.L.R. 5205(1) (McKinney). Funds in a college choice tuition savings program trust fund are fully exempt as to the designated beneficiary, if a minor, and $11,375 is exempt as to the account owner. N.Y. C.P.L.R. 5205(j), 5222 (McKinney). Additional exemption in bankruptcy for the lesser of $5700 or the amount of certain unused exemptions.

Alimony, child support: Court-ordered family support, to the extent needed for support (this determination to be made by court that made support order). N.Y. C.P.L.R. 5205(d)(3) (McKinney).

Tax refunds: Bankruptcy wildcard explicitly applicable to tax refunds. N.Y. Debt. & Cred. Law § 283 (McKinney).

Survival after payment or deposit: If reasonably identifiable statutorily exempt funds have been electronically or direct deposited within 45 days preceding the service of a restraining notice, $2850 in the debtor’s account is exempt. This section does not alter the status of exempt funds, or the debtor’s right to claim them exempt. The amount of this exemption is adjusted for inflation every three years, starting in 2012.