Lowery v. Spector

77 A.D.2d 813, 430 N.Y.S.2d 767, 1980 N.Y. App. Div. LEXIS 12593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1980
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: Appellant is the trustee of the Spector Employees Profit Sharing Trust, a fund established by Solomon Spector in 1955 but amended and restated in 1976 to conform to the provisions of the Federal Employees Retirement Income Security Act (ERISA). It is a qualified retirement plan under the Internal Revenue Code. Since Solomon’s death in 1978, the plan is subject to termination with distribution by lump-sum payment of the principal to the beneficiaries. One of the beneficiaries is Solomon’s son, defendant William Spector. Appellant seeks to pay over one quarter of the principal to defendant William Spector, but it has been served with a restraining notice by plaintiffs, his judgment creditors. Defendants moved to vacate the restraining order and plaintiffs moved for turnover of the funds. Appellant concedes that he would satisfy plaintiffs’ judgment from the trust funds but for the provisions of ERISA (see 6 Weinstein-Korn-Miller, NY Civ Prac, par 5205.22). He contends that the funds are exempt from assignment or alienation under the provisions of that law. Special Term denied the motion to vacate the restraining notice and ordered the turnover of funds to satisfy the judgment. We affirm. We find nothing in the provisions of Federal law prohibiting a levy on trust funds once the trust has terminated and the principal is available for distribution (see, also, National Bank of North Amer. v International Brotherhood of Elec. Workers Local No. 3, Pension & Vacation Funds, 69 AD2d 679; see, contra, Helmsley-Spear, Inc. v Winter, 74 AD2d 195). (Appeal from order of Onondaga Supreme Court—attorney’s fees.) Present—Cardamone, J. P., Simons, Callahan, Doerr and Moule, JJ.