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Family Court Law

Consolidated Laws of NY's FCA code

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Part 7 - Article 4 - Family Court

UNDERTAKING

Section Description
471 Undertaking for support and cash deposits.
472 Undertaking to be filed.
473 Substitution of surety.
474 Default.
475 Procedure as to defaults.
476 Forfeitures applied to support of petitioner.
477 Surrender of respondent by surety.
478 Termination of surety's liability.
479 When new security required.
  S 471. Undertaking for support and cash deposits. The court may in its
  discretion  require  either a written undertaking with sufficient surety
  approved by the court or may require  that  cash  be  posted  to  secure
  compliance by the respondent with the order for support for such period.
  Such  undertaking  shall  be  for a definite period, not to exceed three
  years, and the required amount of  the  principal  of  such  undertaking
  shall not exceed the total payments for support required for three years
  and  shall  be so stated in the order for support. After hearing and for
  good cause shown, the court may extend  an  undertaking  requirement  by
  requiring  a  new  undertaking  similar to the original undertaking. The
  respondent may deposit cash with the clerk, or when the court so orders,
  with the support collection unit designated by  the  appropriate  social
  services  district,  when the order for support directs payments to such
  unit. When such cash has been deposited with the support collection unit
  and the respondent fails to make any  payment,  when  due,  within  such
  period,  payment  shall  be  made  by the support collection unit to the
  petitioner out of such cash. When cash is posted as security, as  herein
  provided,  the  person  or  persons  so  posting  such cash shall at the
  expiration of the period for which such security shall have been ordered
  be entitled to the return of such cash less any amount which shall  have
  been  paid  therefrom  to  the  petitioner  by  reason of any default or
  defaults in payments on the part of the  respondent.  The  form  of  the
  undertaking and the form and manner of justification of the surety shall
  conform to the rules of court.

  S 472. Undertaking  to  be  filed.  If  the  property  securing  the
  undertaking consists of real estate, the undertaking shall be filed with
  the county clerk of the county in which the real estate is  located  and
  the  same  shall constitute a lien upon the real estate specified in the
  undertaking. The county clerk of  each  county  is  hereby  directed  to
  accept such undertakings for filing and to provide proper and sufficient
  books and indexes wherein the same shall be entered.

  S 473. Substitution of surety. The court may at any time thereafter,
  before or after there has been a default, if all arrears have been  paid
  in  case  there  shall have been a default on such undertaking, accept a
  new undertaking in lieu of the original undertaking, and the court shall
  enter an order discharging such undertaking.

  S 474. Default. A default in the terms of the order shall constitute a
  breach of the undertaking. When there has been a default the court shall
  cause  an  affidavit  to  be  drawn,  verified  and  filed by any person
  familiar with the  facts.  The  surety  shall  thereupon  be  personally
  served,  or  served  by  registered  mail  at  the  address given in the
  undertaking or subsequent address furnished by said surety  in  writing,
  with notice of such default and shall be required to attend at the court
  on  a  day  certain and show cause why judgment should not be entered on
  the undertaking and the amount thereof applied  to  the  relief  of  the
  petitioner for the amount in default. If the surety appears and pays the
  amount in arrears the court may remit the forfeiture. Inability to serve
  the  surety  shall  not  be  prejudicial  to  the renewal of proceedings
  against the respondent.

  S 475. Procedure  as to defaults. If the surety contests the default
  the court shall hear and determine the issue.  In  the  event  that  the
  court  finds  that  a  default has been suffered, it shall make an order
  specifying the amount in default and forfeiting the undertaking or  cash
  deposit  to  the  extent of such default. A certified copy of such order
  shall be filed in the county clerk's office with a certified copy of the
  undertaking and thereupon the said clerk shall docket the  same  in  the
  book  kept  by  the clerk for the docketing of judgments, as if the same
  was a transcript of a judgment directed for the amount of  such  sum  in
  default. The certified copy of the undertaking and of the order shall be
  the  judgment  record.  Such judgment shall be a lien on all of the real
  estate and collectible out of the real  and  personal  property  of  the
  surety.  An execution may be issued to collect the amount thereof in the
  same manner as upon a judgment recovered in any court of record.

  S 476. Forfeitures  applied  to  support of petitioner. (a) All sums
  collected from the surety by judgment as well as forfeited cash deposits
  shall be applied by the clerk of court to the support of the petitioners
  for whose benefit the order for support was  made.  Subsequent  defaults
  shall  be  proceeded  upon  in  the  same manner until the amount of the
  principal of the undertaking or the cash deposited has been recovered in
  full.
    (b) Where the respondent,  or  any  one  in  his  behalf,  shall  have
  deposited  with the court monies as surety for compliance with the terms
  of the order of support and the respondent shall have  died,  the  court
  may  make an order directing the payment to the petitioner of all monies
  still in possession of the  court  in  conformance  with  the  order  of
  support.

  S 477. Surrender  of  respondent by surety. A surety may at any time
  surrender a respondent to the court. The respondent shall  thereupon  be
  dealt  with  as provided in the order for support. If the arrears on the
  order for support with interest thereon are paid in full, the court  may
  make  an  order  discharging  the  surety  of  any further liability and
  directing the return of the balance of the cash on deposit to the person
  entitled thereto.

  S 478. Termination of surety's liability. Whenever the liability on an
  undertaking  has  ceased,  the court shall make an order to that effect.
  Upon receipt of a certified copy of the order, the  county  clerk  shall
  discharge of record the lien of the undertaking.

  S 479. When new security required. After an undertaking has been given
  or  cash  has been deposited and it shall appear upon proof by affidavit
  either
    (a) that a judgment entered upon default can not be collected; or
    (b) that the liability of the surety has ceased; or
    (c) that the money deposited has been applied in full; or
    (d) that personal service cannot be effected upon the  surety  or  the
  person depositing the cash; or
    (e)  if  for  any  reason  the  court  shall  find  that  there is not
  sufficient security,  the  court  may  issue  a  summons  requiring  the
  respondent  to appear or a warrant for the arrest of the respondent, and
  require him to give new or additional security. In default  thereof  the
  court  may commit him under the original order in the manner hereinabove
  provided.

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