| Viola v Viola |
| 2010 NY Slip Op 02778 [71 AD3d 1129] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Peter Viola, Appellant, v Kathleen Viola et al.,Respondents. |
—[*1] Jules A. Epstein, P.C., Garden City, N.Y., for respondent Kathleen Viola. O'Hare Parnagian, LLP, New York, N.Y. (Andrew C. Levitt of counsel), for respondentsDuPasquier Co., Inc., and Pershing, LLC.
In an action, inter alia, to recover the proceeds of a purported joint brokerage account, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, KingsCounty (Schack, J.), dated May 12, 2009, as denied that branch of his motion which was forsummary judgment on the second cause of action and granted that branch of the cross motion ofthe defendant Kathleen Viola which was for summary judgment dismissing the second cause ofaction.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The decedent Frank Viola died intestate on October 3, 2007, at the age of 87, survived by hiswife Kathleen Viola, the individual defendant herein and the duly appointed administrator of herdeceased husband's estate.
The decedent's nephew, Peter Viola, commenced this action seeking, inter alia, to recoverthe sum of $673,021.20 from a purported joint brokerage account which was held in thedecedent's name by the defendant Du Pasquier Co. In the second cause of action, the plaintiffalleged that he had a right of survivorship in this account and that Du Pasquier Co. was requiredto turn over the proceeds of such account to him. The plaintiff sued the decedent's wifeindividually and in her representative capacity as the administrator of the decedent's estate, alongwith Du Pasquier Co., and Pershing, LLC, the clearing house which Du Pasquier Co. used toprocess transactions for the decedent's account.
The plaintiff moved for summary judgment on the complaint and the defendant KathleenViola (hereinafter the defendant) cross-moved for summary judgment dismissing the complaint.In the order appealed from, the Supreme Court found, inter alia, that the plaintiff failed toestablish the existence of a joint account with right of survivorship and, inter alia, denied thatbranch of the plaintiff's motion which was for summary judgment on the second cause of actionand granted that branch of the defendant's cross motion which was for summary judgmentdismissing the second cause of action. We affirm the order [*2]insofar appealed from.
The plaintiff failed to demonstrate, prima facie, that he was entitled to judgment as a matterof law on the second cause of action because he did not establish that the decedent completed theapplication form and provided the documents that were necessary to open a joint account withDu Pasquier Co. (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In the absence of a showingthat a joint account was created, the plaintiff cannot rely upon the statutory presumption createdby Banking Law § 675, which applies to determine whether a joint account wasestablished with the intention to create a joint tenancy or for the depositor's convenience(see Banking Law § 675 [b]; Matter of Richichi, 38 AD3d 558 [2007]).
The defendant established, prima facie, that she was entitled to judgment as a matter of lawdismissing the second cause of action by showing that a joint brokerage account was nevercreated. In opposition to the defendant's cross motion, the plaintiff failed to raise a triable issueof fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion whichwas for summary judgment on the second cause of action and properly granted that branch of thedefendant's cross motion which was for summary judgment dismissing the second cause ofaction. Skelos, J.P., Santucci, Angiolillo and Chambers, JJ., concur. [Prior Case History: 23Misc 3d 1122(A), 2009 NY Slip Op 50892(U).]