From Casetext: Smarter Legal Research

Board of Educ. of the City of N.Y. v. Treyball

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1982
86 A.D.2d 639 (N.Y. App. Div. 1982)

Opinion

January 29, 1982

Appeal from an order of the Supreme Court, Kings County (Hirsch, J.), dated October 1, 1980, which confirmed an ex parte order of attachment against the appellants' bank accounts.


Order affirmed, without costs or disbursements. On the record before us Special Term acted properly in confirming the ex parte attachment order against the appellants' bank accounts. The facts demonstrate that defendant, upon the receipt of more than $8,000 in pension benefits, and with the intent to defraud his creditors, placed $5,800 of this sum in bank accounts in the names of his two teenage sons, the appellants herein. The plaintiff presented facts which amply demonstrated the grounds for the attachment, the need for the continuing levy and the probability that it would succeed on the merits in its action against the defendant to recover damages for, inter alia, fraud and conversion (see CPLR 6211, subd [b]; 6223, subd [b]). The appellants' argument that the proceeds of the defendant's retirement contribution are exempt from attachment is without merit. The exemption only applies to the funds while in the possession of the trustees of the fund or, at most, while in the possession of the beneficiary. However, the rule exempting the funds from attachment cannot be read to apply to the funds once they have been transferred to third parties (see Helmsley-Spear, Inc. v. Winter, 74 A.D.2d 195, 197, affd 52 N.Y.2d 984; see, also, National Bank of North Amer. v. International Brotherhood of Elec. Workers Local No. 3, Pension Vacation Funds, 69 A.D.2d 679). Special Term was in error when it concluded that the appellants should have proceeded by way of a motion to vacate the order of attachment pursuant to CPLR 6223. CPLR 6211 (subd [b]) makes it mandatory that the plaintiff move within five days after the levy, upon notice to the defendant as well as to the garnishee, for an order confirming an ex parte order of attachment. In addition, the section states that upon the motion, the provisions of CPLR 6223 (subd [b]) shall apply. The latter section puts the burden of proof of establishing the propriety of the attachment upon the plaintiff. By establishing such a procedure, CPLR 6211 (subd [b]) affords a garnishee the opportunity to contest and vacate an ex parte order of attachment. We have considered the other arguments raised by the appellants and find them to be without merit. Damiani, J.P., Titone, Mangano and Weinstein, JJ., concur.


Summaries of

Board of Educ. of the City of N.Y. v. Treyball

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1982
86 A.D.2d 639 (N.Y. App. Div. 1982)
Case details for

Board of Educ. of the City of N.Y. v. Treyball

Case Details

Full title:BOARD OF EDUCATION OF THE CITY OF NEW YORK, Respondent, v. NORMAN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 29, 1982

Citations

86 A.D.2d 639 (N.Y. App. Div. 1982)

Citing Cases

Rolle v. A.T.M. Three, LLC

Money is fungible and does not maintain its exempt status once it is used for a non-exempt purpose. See,…

Levitt v. Brooks

Brooks Aff, ¶ 16. The only case cited by Brooks in support of this assertion is Board of Educ. of City of…