New York Court of Appeals, 1995

MATTER OF BANK LEUMI TRUST CO. OF NEW YORK v. Dime Sav. Bank of New York

New York Court of Appeals · Decided April 27, 1995 · Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick Concur in Memorandum

650 N.E.2d 846; 85 N.Y.2d 925; 626 N.Y.S.2d 999; 1995 N.Y. LEXIS 1012 (North Eastern Reporter, Second Series)

Cases that cite this one

11 later published cases cite this decision.

Gilchinsky v. NATIONAL WESTMINISTER BANK (N.J. 1999)
Gilchinsky v. National Westminster Bank (N.J. Super. Ct. App. Div. 1998)
Dionne v. Harless (In re Harless) (United States Bankruptcy Court, N.D. Alabama 1995)
Pauk v. Pauk (Appellate Division of the Supreme Court of New York 1996)
Gibson v. Farm Credit E., ACA (Appellate Division of the Supreme Court of New York 2024)
Rech v. Rech (Appellate Division of the Supreme Court of New York 2018)
Friedman v. Turner (Appellate Division of the Supreme Court of New York 2016)
J.K.C. v. T.W.C. (New York Supreme Court 2013)
Housing Opportunities Made Equal, Inc. v. Patari (Appellate Division of the Supreme Court of New York 2000)
415 East 52nd Street Associates v. Oppenheimer & Co. (Appellate Division of the Supreme Court of New York 1996)
Taft v. O'Connell (In re Taft) (District Court, E.D. New York 1995)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

Under CPLR 5205 (c) (1) and (2) as amended in 1989 (L 1989, ch 84), an Individual Retirement Account (IRA) created pursuant to 26 USC § 408 (d) (3) as a result of rollovers from either "a Keogh (HR-10), retirement or other [qualified section 401] plan established by a corporation” is exempt from a judgment creditor’s levy. That exemption, which was in effect at the time this enforcement proceeding was instituted, applied to the IRA account that respondent McCain maintained at respondent Dime Savings Bank, since the account was created as a result of a timely rollover of the funds that were previously held in McCain’s former employer’s qualified Pension, Profit and Stock Bonus Plan pursuant to section 401 (k) of the Internal Revenue Code (see, 26 USC § 402 [c] [3]; § 408 [d] [3] [A] [i]). The fact that the IRA account was created before the 1989 amendment became effective is of no moment, since the controlling event in this context is petitioner judgment creditor’s effort to levy against this presently exempt fund. Accordingly, the courts below erred in granting the petition.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.