| Matter of Costantino |
| 2009 NY Slip Op 08365 [67 AD3d 1412] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Anne M. Costantino, Deceased. Lynn Reitz,Respondent; Joanne Quirion, Appellant; and David S. Broderick, Niagara County PublicAdministrator and Fiduciary of Estate of Anne M. Constantino, Deceased,Respondent. |
—[*1] Stanley J. Collesano, LLC, Buffalo (Sean A. Fitzgerald of counsel), forpetitioner-respondent.
Appeal from an order of the Surrogate's Court, Niagara County (Sara S. Sperrazza, S.),entered February 28, 2007. The order approved the final account of respondent David S.Broderick, Niagara County Public Administrator, as modified by the allowance of attorney's feesand disbursements to petitioner's attorney.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Anne M. Costantino (decedent) and objectant, one of her daughters, openedthree joint bank accounts with right of survivorship. After decedent died, respondent, as NiagaraCounty Public Administrator and the fiduciary of decedent's estate, determined that the accountswere convenience accounts and that the sum of $5,499.68 removed by objectant from the jointaccounts rightfully belonged to the estate. Objectant previously appealed from an order grantingin part the motion of petitioner, who was also decedent's daughter, seeking summary judgmentdismissing the objections filed by objectant to the petition for judicial settlement of the accountof proceedings. We modified the order "by providing that the issues to be determined at thehearing with respect to objection No. 4[, concerning the expenditures presently at issue,] arewhether a joint tenancy with right of survivorship was created and, if it is determined that nosuch tenancy was created, whether the expenditures in question were on behalf of decedent'sestate" (Matter of Costantino, 31AD3d 1097, 1099 [2006]).
Following a hearing, Surrogate's Court determined that the accounts were indeedconvenience accounts, that the expenditures made by objectant were for her personal benefit andthat a setoff [*2]against objectant's share of the estate wasappropriate. Because the work of petitioner's attorney had increased the size of the estate to thebenefit of all beneficiaries, the Surrogate also awarded attorney's fees and disbursements topetitioner's attorney as an estate expense.
We agree with objectant that the Surrogate erred in applying the doctrine of judicial estoppelin determining that the accounts were convenience accounts. Although objectant had not listedthe joint accounts as assets during unrelated divorce proceedings, her "silence . . . isnot sufficient to establish taking a position in the matrimonial action that was contrary to hercurrent contention" (Mikkelson vKessler, 50 AD3d 1443, 1444 [2008]). Furthermore, objectant testified that thematrimonial proceeding ended in a settlement and, generally, "a settlement does not constitute ajudicial endorsement of either party's claims or theories and thus does not provide the priorsuccess necessary for judicial estoppel" (Manhattan Ave. Dev. Corp. v Meit, 224 AD2d191, 192 [1996], lv denied 88 NY2d 803 [1996] [internal quotation marks omitted];see Bates v Long Is. R. Co., 997 F2d 1028, 1032 [1993], cert denied 510 US 992[1993]; cf. State FarmMut. Auto. Ins. Co. v Chandler, 35 AD3d 588 [2006]).
Nevertheless, we conclude that the Surrogate properly determined that the accounts wereconvenience accounts. Petitioner rebutted the presumption of Banking Law § 675 byestablishing " 'that the joint account[s] had been opened in that form as a matter of convenienceonly' " (Matter of Stalter, 270 AD2d 594, 596 [2000], lv denied 95 NY2d 760[2000]; see Matter of Friedman, 104 AD2d 366, 367 [1984], affd 64 NY2d 743[1984]; Matter of Camarda, 63 AD2d 837, 838 [1978]). Contrary to the final contentionsof objectant, the Surrogate did not impose any sanctions for her purported misconduct in theunrelated matrimonial proceeding (see CPLR 3126), nor did the Surrogate abuse herdiscretion in awarding compensation to petitioner's attorney for services he performed thatultimately benefitted the estate (see SCPA 2110 [1]; Matter of Cohen, 52 AD3d 1080, 1081 [2008]; Matter ofBellinger, 55 AD2d 448, 451-452 [1977]). Present—Hurlbutt, J.P., Centra, Fahey,Carni and Pine, JJ.