Bank Leumi Trust Co. v. Dime Savings Bank, 609 N.Y.S.2d 267

Bank Leumi Trust Co. v. Dime Savings Bank

609 N.Y.S.2d 267 | N.Y. App. Div. | 1994

In a proceeding pursuant to CPLR 5227 to compel the payment of a debt owed by a judgment debtor, Warren McCain appeals from so much of a judgment of the Supreme Court, Queens County (Smith, J.), dated February 11, 1992, as granted the petition.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

*579The appellant’s contention that the individual retirement account that he deposited with the defendant Dime Savings Bank of New York is exempt from an application to satisfy a money judgment pursuant to CPLR 5205 (c) (2) is without merit. While the account apparently was created as a result of a rollover from a corporate retirement plan in conformity with 26 USC § 408 (d) (3), it does not constitute "either a Keogh (HR-10), retirement or other plan established by a corporation” (CPLR 5205 [c] [2]), and therefore is not entitled to the protection of CPLR 5205 (see, European Am. Bank & Trust Co. v H. Frenkel, Ltd,., 147 Misc 2d 423, 424; see also, Long Is. Jewish Hillside Med. Ctr. v Prendergast, 134 Misc 2d 93; Matter of Abrahams v New York State Tax Commn., 131 Misc 2d 594; Annotation, Employee Retirement Pension Benefits as Exempt from Garnishment, Attachment, Levy, Execution, or Similar Proceedings, 93 ALR3d 711; 6 Weinstein-KornMiller, NY Civ Prac |f 5205.22a).

We have considered the appellant’s remaining contentions and find them to be unpreserved for appellate review and, in any event, without merit. Rosenblatt, J. P., Lawrence, Altman and Goldstein, JJ., concur.