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

85 N.Y.2d 925 (1995)

650 N.E.2d 846

626 N.Y.S.2d 999

In the Matter of Bank Leumi Trust Company of New York, Respondent, v. Dime Savings Bank of New York, FSB, Respondent, and Warren McCain, Appellant.

Court of Appeals of the State of New York.

Argued March 29, 1995.

Decided April 27, 1995.

Melvin S. Hirshowitz, New York City, for appellant.

No appearance for respondents.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.

*926MEMORANDUM.

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.

Order reversed, etc.