CPLR § 5205

CPLR 5205(j)(2)

Country Bank v Broderick, 2014 NY Slip Op 05621 [2nd Dept. 2014]

The Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 5240 for a determination that the funds sought to be levied upon—college savings accounts established under the laws of the State of New Hampshire (see NH Rev Stat Ann, ch 195-H)—are not exempt from levy in connection with the satisfaction of an underlying Connecticut money judgment that was docketed in New York pursuant to CPLR 5402.

The parties do not dispute that the protection from creditors afforded by CPLR 5205(j)(2) to college tuition savings program accounts defined in 26 USC § 529 (hereinafter 529 savings plans) does not apply where, as here, the accounts are not qualified college savings program accounts established pursuant to the New York State College Choice Tuition Saving Program, as set forth in Education Law article 14-A. The Supreme Court correctly concluded that the distinction made in CPLR 5205(j) between 529 savings plans established under the laws of New York, and those established in other states, or under the laws of other states, does not violate the equal protection clause of the United States Constitution. Since the classification "is not based on an inherently suspect characteristic and does not impermissibly interfere with the exercise of a fundamental right, it need only rationally further a legitimate state interest to be upheld as constitutional" (Affronti v Crosson, 95 NY2d 713, 718-719; see Nordlinger v Hahn, 505 US 1, 10; New Orleans v Dukes, 427 US 297, 303; Archbishop Walsh High School v Section VI of the N.Y. State Pub. High School Athletic Assn., 88 NY2d 131, 136). Applying this standard of rational basis review, the court properly determined that CPLR 5205(j) was not unconstitutional, as the disparate treatment is not " so unrelated to the achievement of any combination of legitimate purposes'" as to be irrational (Affronti v Crosson, 95 NY2d at 719, quoting Kimel v Florida Bd. of Regents, 28 US 62, 84).

Contrary to the defendant's contention, the statute is not antithetical to the public policy of the State of New York, and "the choice between conflicting policy values is best made by the Legislature" (Anonymous v Bureau of Professional Med. Conduct/State Bd. for Professional Med. Conduct, 2 NY3d 663, 669 [internal quotation marks omitted]).

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