Plymouth Rock Fuel Corp. v. Bank of New York

102 Misc. 2d 235, 425 N.Y.S.2d 908, 1979 N.Y. Misc. LEXIS 2851

Opinions

OPINION OF THE COURT

Memorandum.

Judgment and order of the court below (see 91 Mise 2d 837) affirmed, without costs.

Respondent appeals from a judgment directing it to pay over to petitioner judgment creditor certain assets belonging to the judgment debtor (see CPLR 5227). Some of these assets are held by respondent as custodian under a "Keogh” profit-sharing plan.

On this appeal, respondent contends that the "Keogh” plan assets are exempt from garnishment, levy, or execution by general creditors by reason of section 401 (subd [a], par [13]) of the Internal Revenue Code which prohibits assignment or alienation of qualified pension plan benefits.

We are constrained to follow National Bank of North Amer. v International Brotherhood of Elec. Workers (69 AD2d 679, 686), in which the Appellate Division, Second Department, held that the prohibition of assignments and alienations (see US Code, tit 29, § 1056, subd [d]; US Code, tit 26, § 401, subd [a], par [13]) "was not intended to bar the enforcement of money judgments by application of legal process, such as garnishment.”