The following efiled papers numbered 18-34 submitted and considered on this motion by Plaintiff April Young (hereinafter Young), as Administrator of the Estate of Tracy Young-Cash, deceased, seeking this Court to so-ordering the Plaintiff’s Restraining Order; and so-ordering the Plaintiff’s Information Subpoena with Restraining Order; and so-ordering the Plaintiff’s Questions and Answers in Connection with Information Subpoena. Papers Numbered Order to Show Cause-Affirmation in Support-Affidavits-Exhibits EF 18-26 Affirmation in Opposition-Affidavits-Exhibits EF 27-32 Affirmation in Reply-Affidavits-Exhibits EF 33-34 Relevant Factual and Procedural Background This wrongful death action arises from the murder of Tracey Young-Cash by her husband, Defendant Clarence Cash (hereinafter “Cash”), on December 11, 2011.Cashwas convicted of felony murder on October 3, 2014. On May 31, 2018, this Court granted summary judgment to Young, as the Administrator of Tracey Young-Cash’s estate, on the issue of liability. A damages trial was held before the undersigned on April 12, 2021, which resulted in a judgment for Young, wherein the decedent’s estate was awarded $4,500,000 for wrongful death and $500,000 for conscious pain and suffering, plus costs and interest, totaling $6,350,000. On January 2, 2024, Young served the New York City Police Pension Fund with a Restraining Order, Information Subpoena with Restraining Order, and Questions and Answers in Connection with Information Subpoena. The Pension Fund responded on January 30, 2024, stating that they could not restrain a member’s retirement benefits without a court-ordered restraining order. Young now seeks this Court to so order these documents to collect the judgment from Cash’s pension. Young argues that under the Son of Sam law, crime victims are permitted to recover pension assets from convicted persons. She emphasizes that Cash is currently serving a prison sentence of 24 years to life and, other than his police pension, he is judgment-proof. She asserts that it is necessary for the court to issue the Restraining Order and Information Subpoena to collect the judgment, as these are the only viable means to enforce the judgment. Young relies on the case Kane v. Galtieri, 122 A.D.3d 582 (2d Dept 2014), which supports the recovery of pension assets by crime victims. She further provides that the Pension Fund’s response necessitates a court order for them to comply with the restraining request. Young contends that the request is justified because Cash’s pension is the primary source available for satisfying the judgment awarded to the decedent’s estate. Cash opposes the motion, arguing that garnishing his pension would constitute cruel and unusual punishment under the Eighth Amendment. He contends that he has earned his pension through honorable public service and that diverting or divesting his retirement benefits now, nearly 18 years after he began receiving them, and 13 years into his incarceration, is exceptionally cruel. Cash also argues that the Son of Sam law should not apply to his pension and retirement benefits, which are protected under various statutes, including the Retirement and Social Security Law §110(2), the Administrative Code of the City of New York, CPLR 5205(c) & (k), and ERISA. He points out that the Kane case involved a disability pension accrued during marriage, distinguishing it from his service retirement pension, which did not accrue during his marriage and is not a marital asset. Cash asserts that enforcing the judgment against his pension would violate statutory protections and legislative intent, as these protections have not been explicitly overridden by the Son of Sam law. Law and Application The Eighth Amendment to the United States Constitution provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Executive Law §632-a provides: …(1)(c) “Funds of a convicted person” means all funds and property received from any source by a person convicted of a specified crime, or by the representative of such person as defined in subdivision six of section six hundred twenty-one of this article excluding child support and earned income… …(3) Notwithstanding any inconsistent provision of the estates, powers and trusts law or the civil practice law and rules with respect to the timely bringing of an action, any crime victim shall have the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which the crime victim is a victim, or the representative of that convicted person, within three years of the discovery of any profits from a crime or funds of a convicted person, as those terms are defined in this section. Notwithstanding any other provision of law to the contrary, a judgment obtained pursuant to this section shall not be subject to execution or enforcement against the first one thousand dollars deposited in an inmate account to the credit of the inmate pursuant to section one hundred sixteen of the correction law or in a prisoner account to the credit of the prisoner pursuant to section five hundred-c of the correction law. In addition, where the civil action involves funds of a convicted person and such funds were recovered by the convicted person pursuant to a judgment obtained in a civil action, a judgment obtained pursuant to this section may not be subject to execution or enforcement against a portion thereof in accordance with subdivision (k) of section fifty-two hundred five of the civil practice law and rules. If an action is filed pursuant to this subdivision after the expiration of all other applicable statutes of limitation, any other crime victims must file any action for damages as a result of the crime within three years of the actual discovery of such profits or funds, or within three years of actual notice received from or notice published by the office of such discovery, whichever is later. As an initial matter, the Court notes that the Eighth Amendment’s prohibition against cruel and unusual punishment applies to criminal sanctions and not to civil judgments (see Ingraham v. Wright, 430 U.S. 651 [1977]; Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 [1989]). New York courts have similarly limited the Eighth Amendment’s scope to criminal cases (see People v. Broadie, 37 N.Y.2d 100, 130 [1975]). Here, Cash’s argument that garnishing his pension constitutes cruel and unusual punishment is therefore not applicable to the case at hand and without merit. Next, under Executive law 632-a, dubbed the “Son of Sam law,”1 2 crime victims can recover funds from convicted individuals, including pensions (see Kane v. Galtieri, 122 A.D.3d 582 [2d Dept 2014]; Matter of New York State Off. of Victim Servs. v. Raucci, 97 A.D.3d 235 [3d Dept 2012]). The 2001 amendments to this law expanded its scope to include “all funds and property received from any source” by the convicted person, allowing crime victims to recover such assets regardless of their source. The Court in Kane determined that the Defendant’s pension could be subject to execution under the Son of Sam law despite protections typically afforded to pensions under various statutes, including the Retirement and Social Security Law and the Administrative Code of the City of New York. The legislative intent behind the 2001 amendments to the Son of Sam law was to hold convicted criminals financially accountable to their victims, overriding statutory protections typically applied to pensions. Here, Cash argues that his pension is protected under several statutes and ERISA. However, such statutory protections do not supersede the provisions of the Son of Sam law when it comes to crime victims seeking to recover damages from convicted individuals. Moreover, contrary to Cash’s contentions, the ruling in Kane clarified that under Executive Law §632-a, the term “funds of a convicted person” encompasses all funds and property received from any source. This broad definition applies equally to both disability pensions and service retirement pensions, regardless of whether they accrued during the marriage or are considered marital assets. Hence, this Court finds that Young’s request to enforce the judgment against Cash’s pension is valid under the Son of Sam law, which permits crime victims to recover funds from convicted individuals, including Cash’s service retirement pension. Cash’s arguments regarding cruel and unusual punishment and statutory protections for his pension has no merit in the context of this civil enforcement action. Accordingly, it is hereby ORDERED, that the motion by Plaintiff April Young, as Administrator of the Estate of Tracey Young-Cash, for a the So-Ordering of a Restraining Order, Information Subpoena with Restraining Order, and Questions and Answers in Connection with Information Subpoena is granted. Plaintiff is directed to submit a Restraining Order, Information Subpoena with Restraining Order and, Plaintiff’s Questions and Answers in Connection with Information Subpoena to the Supreme Court of the State of New York, County of Queens, Part 30 Clerk in Courtroom 67 for the undersigned’s signature. Dated: June 28, 2024
