Opinion
Argued October 12, 1984
Decided November 15, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Frank J. Pino, J.
Gretchen L. Sprague and John C. Gray, Jr., for appellants.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Irving Genn and Leonard Koerner of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In this action, plaintiff Board of Education sought to attach pension contributions that had been refunded to defendant and transferred to his sons, appellants in this court. The Board alleged that defendant, formerly a school custodian-engineer, had unlawfully retained $23,837.39 in municipal funds, and had fraudulently transferred to his sons' moneys returned to him by the Board of Education Retirement System, to protect these funds from being subject to a judgment in favor of the Board. Supreme Court granted the Board an order attaching the returned pension contributions, then held in defendant's sons' bank accounts. The Appellate Division affirmed.
The question on this appeal is whether the subject funds were immune from attachment by virtue of a provision in the Rules and Regulations of the Board of Education Retirement System. Appellants rely on section 26 of those rules which provides, in relevant part, that "[t]he right of a person to * * * the return of contributions * * * shall not be subject to * * * attachment." A reading of this provision indicates that it was intended to protect pension contributions from attachment so long as they are held by the trustees of the retirement system; it was not intended to immunize the contributions from attachment once returned to the retiree. Indeed, the provision speaks only in terms of protecting the "right" to a return of contributions, and not the contributions once returned, nor the contributions transmitted to third parties following return. This is contrasted by the same provision as it affects "retirement allowances." In that instance, the subject provision seeks to protect not only the "right" to retirement allowances but also a "retirement allowance itself" (see Retirement and Social Security Law, § 110).
Appellants' other arguments have been considered and found to be without merit.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed, with costs, in a memorandum.