| Jacks v D'Ambrosio |
| 2010 NY Slip Op 00105 [69 AD3d 574] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Laurence M. Jacks, Appellant, v Jeanmarie D'Ambrosio etal., Respondents. |
—[*1] Ryan, Brennan & Donnelly, LLP, Floral Park, N.Y. (John M. Donnelly and John E. Ryan ofcounsel), for respondents.
In an action, inter alia, to recover damages for conversion, the plaintiff appeals from ajudgment of the Supreme Court, Nassau County (Cozzens, J.), dated December 2, 2009, which,upon a decision of the same court dated September 3, 2008, made after a nonjury trial, is in favorof the defendants and against him dismissing the complaint.
Ordered that on the Court's own motion, the notice of appeal from the decision is deemed tobe a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,
Ordered that the judgment is affirmed, with costs.
Banking Law § 675 provides that, when a deposit has been made with any bankingorganization in the name of the depositor and another person "in form to be paid or delivered toeither, or the survivor of them, such deposit . . . and any additions thereto made. . . shall become the property of such persons as joint tenants" (Banking Law§ 675 [a]). In the absence of fraud or undue influence, such deposit will be prima facieevidence of the parties' intention to create a joint tenancy (see Banking Law § 675[b]). Contrary to the plaintiff's contention, the defendants rebutted the statutory presumption bypresenting "evidence showing that the depositor established the account for convenience and notwith the intention of conferring a present beneficial interest on" the plaintiff (Matter ofFriedman, 104 AD2d 366, 367 [1984], affd 64 NY2d 743 [1984]; see Fragetti vFragetti, 262 AD2d 527 [1999]; Viggiano v Viggiano, 136 AD2d 630 [1988];Brezinski v Brezinski, 94 AD2d 969 [1983]; Wacikowski v Wacikowski, 93AD2d 885 [1983]).
The Supreme Court also appropriately concluded that the familial relationship between thedefendant Jean Marie D'Ambrosio and the decedent in this case counterbalanced any legalpresumption that the decedent's decision to withdraw the funds from the subject bank accountswas the product of undue influence (see Matter of Walther, 6 NY2d 49, 56 [1959];Matter of Swain, 125 AD2d 574, 575 [1986]). Thus, the burden of proving undueinfluence rested with the plaintiff (see Matter of Connelly, 193 AD2d 602, 602 [1993]).The plaintiff failed to meet his burden by adducing evidence that [*2]undue influence was actually utilized (see Matter of Fiumara,47 NY2d 845, 846 [1979]; Matter of Walther, 6 NY2d at 55; Matter ofChiurazzi, 296 AD2d 406 [2002]). Fisher, J.P., Angiolillo, Dickerson and Leventhal, JJ.,concur.