| Matter of Dubin |
| 2008 NY Slip Op 07126 [54 AD3d 947] |
| September 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Sylvia Dubin, Deceased. SusanBrooks et al., Respondents; Joan Levine, Appellant, et al.,Respondents. |
—[*1] Proskauer Rose LLP, New York, N.Y. (Leonard S. Baum and Erin C. Durba of counsel) andFarrell Fritz, P.C., Uniondale, N.Y. (Ilene Cooper of counsel), for petitioners-respondents (onebrief filed).
In a contested probate proceeding, the objectant Joan Levine appeals, as limited by her brief,from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated April 17,2007, as, upon a decision of the same court dated March 8, 2007, granted that branch of thepetitioners' motion which was for summary judgment directing her to turn over to the decedent'sestate the proceeds from the sale of the decedent's interest in Garvies Point Realty, LLC, togetherwith the decedent's capital account in that company in the principal sum of $28,357.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was for summary judgment directing the appellant to turn over to thedecedent's estate the decedent's capital account in Garvies Point Realty, LLC, in the principalsum of $28,357, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
In 2004, approximately eight months before her death, the decedent sold her interest inGarvies [*2]Point Realty, LLC (hereinafter Garvies Point), for thesum of $151,388.90. The proceeds were placed in a joint checking account in the names of thedecedent and the objectant Joan Levine. After the decedent's death, the objectant retained theproceeds in the account. The petitioners Susan Brooks and Richard Brooks, coexecutors of thedecedent's estate, moved, inter alia, for summary judgment directing the objectant and thedecedent's brother (Melvin Dubin) to turn over the proceeds in the joint checking account to theestate, together with the decedent's capital account in Garvies Point in the principal sum of$28,357. The objectant opposed such relief on the ground that the account was hers by right ofsurvivorship. The Surrogate's Court, among other things, granted that branch of the petitioners'motion which was for summary judgment directing the objectant to turn over the proceeds in thejoint checking account to the estate, together with the capital account in Garvies Point. Theobjectant appeals. We modify.
Generally, the deposit of funds into a joint account constitutes prima facie evidence of anintent to create a joint tenancy (seeMatter of Richichi, 38 AD3d 558 [2007]; Matter of Fayo, 7 AD3d 795 [2004]). Furthermore, survivorshiplanguage on bank documents, such as that found on the client agreement here, triggers thepresumption in Banking Law § 675 that the account is a joint account with right ofsurvivorship (see Matter of Costantino,31 AD3d 1097 [2006]). However, the statutory presumption may be rebutted by directproof that no joint tenancy was intended, or substantial circumstantial proof that the joint accountwas opened for convenience only (seeMatter of Richichi, 38 AD3d 558 [2007]; Matter of Fayo, 7 AD3d 795 [2004]). Here, the petitionerssubmitted evidence sufficient to demonstrate, prima facie, that no joint tenancy was intended bythe decedent, and that the joint checking account was opened for convenience only.
When examined concerning the account, Melvin Dubin testified that the decedent sold herinterest in Garvies Realty upon his recommendation in order to generate funds to help defray hermedical and living expenses. Further, he testified, because the decedent had confidence in hisjudgment and recommendation, she entrusted the details of the sale and the disposition of thefunds to him, and he did not discuss the details with her. Consequently, he testified, although thedecedent signed the account documents, he decided on a joint checking account and "arbitrarily"selected the objectant as the cosignatory as a "protective device." Dubin asserted that, on prioroccasion, large checks had been issued for the benefit of the petitioners from an account onwhich only the decedent was the signatory. Thus, he opined, "it was important to have acosignator." Finally, Dubin testified, as far as he was concerned, the account was for the benefitof the decedent and her creditors, and he saw no reason why the account should not be turnedover to the estate.
When examined concerning the account, the objectant agreed that she could be properlycharacterized as the "custodian" of the account, and testified that she had been made a signatorymerely as a "safeguard" because Dubin didn't want the decedent's money to be "plundered." Theobjectant testified that, at the direction of Dubin, she had written checks from the account onbehalf of the decedent totaling $22,750. Checks were written both before and after the decedent'sdeath. When questioned, the objectant did not claim any right to the proceeds in the jointchecking account by right of survivorship. Rather, she testified, she had retained the proceedsbecause she understood that she had been willed the decedent's interest in Garvies Point.
This testimony was sufficient to demonstrate, prima facie, that the decedent did not open thejoint checking account with an intent of creating a joint tenancy with a right of survivorship inthe objectant, but rather that the account was opened as a mere convenience (cf. Matter of Katz, 43 AD3d 442[2007]). In [*3]opposition, the objectant failed to raise a triableissue of fact. Thus, the proceeds in the joint checking account were properly ordered to be turnedover to the estate.
However, the petitioners failed to demonstrate, prima facie, that the objectant was inpossession or control of the decedent's capital account in Garvies Point in the principal sum of$28,357. Indeed, the scant evidence concerning the capital account in the record—anassignment, transfer, and release signed by the decedent—suggests that the capital accountwas included in the sale price. Thus, that branch of the petitioners' motion which was forsummary judgment directing the objectant to return the capital account to the estate should havebeen denied.
Motion by the petitioners-respondents on appeal from an order of the Surrogate's Court,Nassau County (Riordan, S.), dated April 17, 2007, to strike point 1-B of the appellant's replybrief. By decision and order on motion of this Court dated April 14, 2008 [2008 NY Slip Op69094(U)], the motion was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon argument of the appeal, it is
Ordered that the motion is denied. Ritter, J.P., Miller, Dillon and McCarthy, JJ., concur.