415 East 52nd Street Associates v. Oppenheimer & Co. , 638 N.Y.S.2d 300 ( 1996 )

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about September 12, 1994, which granted petitioner’s application and ordered the parties to settle a judgment directing respondent garnishee. Oppenheimer & Co., Inc. to pay over monies in the Individual Retirement Account ("IRA”) custodial account of respondent judgment debtor James B. Mintzer, is unanimously reversed, on the law, and the application is denied, without costs.

In granting the within petition, the IAS Court, after voicing strong reluctance, felt constrained to rely on Matter of Bank Leumi Trust Co. v Dime Sav. Bank (202 AD2d 578), a Second Department case which held that an IRA created as the result of a "rollover” from a qualified profit-sharing plan under section 401 of the United States Internal Revenue Code (26 USC) was not exempt from levy. In reversing the Second Department, the Court of Appeals (85 NY2d 925, 926) held that: "Under CPLR 5205 (c) (1) and (2) * * * an Individual Retirement Account (IRA) created * * * 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.”

Accordingly, pursuant to the ruling of the Court of Appeals in Matter of Bank Leumi Trust Co. v Dime Sav. Bank (supra), we reverse. Concur — Sullivan, J. P., Wallach, Rubin and Tom, JJ.