| Rosenzweig v Friedland |
| 2011 NY Slip Op 04031 [84 AD3d 921] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Robert L. Rosenzweig, Also Known as Robert Rosenzweig,Appellant, v Ann Paula Friedland, Respondent. |
—[*1] Jules A. Epstein, P.C., Garden City, N.Y., for respondent.
In an action, inter alia, to recover damages for unjust enrichment, the plaintiff appeals fromso much of a judgment of the Supreme Court, Kings County (Jacobson, J.), dated November 2,2009, as, upon an order of the same court dated June 25, 2009, (1) granting those branches of thedefendant's motion which were for summary judgment dismissing the first, second, fifth, sixth,seventh, and eighth causes of action, (2), in effect, granting that branch of the defendant's motionwhich was for summary judgment dismissing the third cause of action, and (3), in effect, denyingthose branches of his cross motion which were for summary judgment on the issue of liability onthe first, second, third, fifth, sixth, seventh, and eighth causes of action, is in favor of thedefendant and against him, dismissing the first, second, third, fifth, sixth, seventh, and eighthcauses of action.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the first, second, fifth, sixth, seventh, and eighth causes of action; as so modified, thejudgment is affirmed insofar as appealed from, without costs or disbursements, those branches ofthe defendant's motion which were for summary judgment dismissing the first, second, fifth,sixth, seventh, and eighth causes of action are denied, the order dated June 25, 2009, is modifiedaccordingly, and the first, second, fifth, sixth, seventh, and eighth causes of action are severed.
The plaintiff and the defendant are the son and daughter, respectively, of the decedent,Manny M. Rosenzweig, who left a will directing that his entire estate be given in equal shares tothem after the payment of debts and expenses. In this action, the plaintiff asserts several causes ofaction alleging that the defendant was unjustly enriched by the receipt of certain funds thedecedent withdrew during his life, or that the defendant withdrew pursuant to a power ofattorney, from accounts held jointly in the names of the plaintiff and the decedent (hereinafter theFederated Investors joint account and the Chase joint account).
Initially, contrary to the Supreme Court's determination, the plaintiff was not required toname the decedent's estate as a party in order to assert claims regarding withdrawals the decedentmade from the subject accounts prior to his death in light of the duly-executed stipulation of theparties, permitting [*2]the commencement of this action withoutnaming the estate. Under the circumstances of this case, the parties properly charted their ownprocedural course, and the stipulation was binding and enforceable (see Nishman v DeMarco, 76 AD2d 360, 368 [1980]).
"To prevail on a claim of unjust enrichment, a plaintiff must establish that the defendantbenefitted at the plaintiff's expense and that equity and good conscience require restitution" (Spector v Wendy, 63 AD3d 820,822 [2009] [internal quotation marks omitted]). Here, the causes of action alleging unjustenrichment are premised on the plaintiff's claim that the alleged withdrawals of funds invaded hismoiety interest in the accounts he held jointly with the decedent. "Generally, the deposit of fundsinto a joint account 'in the name of such depositor . . . and another person and inform to be paid or delivered to either, or the survivor of them' constitutes prima facie evidence ofan intent to create a joint tenancy" (Matter of Fayo, 7 AD3d 795, 796 [2004], quoting Banking Law§ 675 [a]; see Adams vHickey, 35 AD3d 328, 330 [2006]). "Therefore, a decedent who deposited money in ajoint bank account is 'presumed to have conferred on the cotenant not only a mere expectancy,but rather a gift of a one-half interest in the deposited funds' " (Adams v Hickey, 35AD3d at 330, quoting Matter of Bobeck, 143 AD2d 90, 92 [1988]; see Matter ofCovert, 97 NY2d 68, 75 [2001]; Matter of Kleinberg v Heller, 38 NY2d 836,840-841 [1976]). "When a joint tenancy is created, each joint tenant has the right as a joint ownerof the bank account to withdraw a moiety (half) or less than a moiety for his own use and thusdestroy the joint tenancy as to such withdrawals" (Matter of Bricker v Krimer, 13 NY2d22, 27 [1963]). The burden of refuting the rebuttable presumption created by Banking Law§ 675 is on the party challenging the joint tenancy (see Banking Law § 675[b]; Matter of Kleinberg v Heller, 38 NY2d at 840).
The Supreme Court properly, in effect, granted that branch of the defendant's motion whichwas for summary judgment dismissing the third cause of action alleging that the defendant wasunjustly enriched when, acting pursuant to a durable power of attorney during the decedent's life,she withdrew the sum of $100,000 from the Federated Investors joint account, which had abalance in excess of $250,000, and deposited the withdrawn funds into the decedent's individualchecking account, over which she had a power of attorney. Since the amount of the subjectwithdrawal did not invade the plaintiff's one-half interest (see Matter of Covert, 97 NY2dat 75; Matter of Bricker v Krimer, 13 NY2d at 27), the plaintiff failed to raise a triableissue of fact in opposition to the defendant's motion, and failed to establish prima facieentitlement to judgment as a matter of law on his cross motion for summary judgment on thethird cause of action. Accordingly, that cause of action was properly dismissed.
The Supreme Court, however, should have denied those branches of the defendant's motionwhich were for summary judgment dismissing the first, second, fifth, sixth, seventh, and eighthcauses of action, wherein the plaintiff alleges that the defendant was unjustly enriched byreceiving funds withdrawn from the Chase joint account and deposited into another joint accountthe defendant shared with the decedent. Unlike the withdrawal from the Federated Investors jointaccount, the withdrawals from the Chase joint account invaded the plaintiff's one-half interest.On her motion for summary judgment, the defendant failed to eliminate triable issues of fact withrespect to her contention that, contrary to the presumption created by Banking Law § 675,the Chase joint account was not a joint tenancy. The defendant admits in her affidavit in supportof the motion that the bank documents appear to create a joint tenancy between the decedent andthe plaintiff with right of survivorship. Further, the defendant failed to eliminate triable issues offact as to whether, as she contends, the funds initially deposited into the Chase joint account werederived from sources belonging to her, namely, a revocable savings account trust the decedenthad established for her benefit, a joint savings account in her name and the decedent's name(hereinafter the Ulster joint account), and proceeds from the sale of the decedent's house. First,the revocable savings account trust, commonly known as a Totten Trust (see Matter ofTotten, 179 NY 112 [1904]), of which the defendant was a named beneficiary, provided thedefendant with a mere expectancy rather than a vested interest in the monies deposited therein(see Blackmon v Estate of Battcock, 78 NY2d 735, 739 [1991]; Petty v Barnes, 70 AD3d 661, 662[2010]), and the decedent retained authority to revoke the trust in whole or in part by makingwithdrawals therefrom (see EPTL 7-5.2 [1]). Second, the defendant failed to establish herone-half interest in the Ulster joint account as a joint tenant with evidence that the account was inthe names of the decedent "or" the defendant, without specific words of survivorship (seeMatter of Coon, 148 AD2d 906, 907 [1989]; Matter of Timoshevich, 133 AD2d1011, 1012 [1987]). Third, the decedent had unfettered authority to manage or dispose of hisassets, including the sale of his house and the proceeds [*3]therefrom, during his lifetime (see Blackmon v Estate ofBattcock, 78 NY2d at 739; Gotte v Long Is. Trust Co., 133 AD2d 212, 215 [1987]).
The defendant contends that the plaintiff should be precluded from asserting the causes ofaction alleging unjust enrichment against her because he has unclean hands. The defendant,however, failed to adduce prima facie evidence in support of this assertion, offering onlyconjecture that the plaintiff coerced or exerted undue influence over the decedent (see Fade v Pugliani/Fade, 8 AD3d612, 614 [2004]; cf. Cohn & Berk v Rothman-Goodman Mgt. Corp., 125 AD2d 435,436 [1986]). Further, contrary to the Supreme Court's determination, the defendant did notestablish her prima facie entitlement to judgment as a matter of law dismissing the causes ofaction alleging unjust enrichment by pointing to a lack of evidence that she had improperlyinfluenced the decedent in making the subject withdrawals. "Unjust enrichment . . .does not require the performance of any wrongful act by the one enriched. Innocent parties mayfrequently be unjustly enriched" (Simonds v Simonds, 45 NY2d 233, 242 [1978][citations omitted]). Accordingly, the Supreme Court should have denied those branches of thedefendant's motion which were for summary judgment dismissing the first, second, fifth, sixth,seventh, and eighth causes of action.
On the cross motion with respect to those same causes of action, the plaintiff did notestablish his prima facie entitlement to judgment as a matter of law on the issue of liability. Thesignature card and account application upon which the plaintiff relies in support of his contentionthat the Chase joint account was a joint tenancy with right of survivorship was submitted for thefirst time in reply papers and, thus, cannot be considered for the purpose of establishing his primafacie entitlement to judgment as a matter of law (see Sullivan v American Airlines, Inc., 80 AD3d 600, 601 [2011]).Moreover, the plaintiff did not establish his prima facie entitlement to judgment as a matter oflaw on his claims that the defendant benefitted unjustly at his expense in light of the existence oftriable issues of fact regarding the sources of the funds in the Chase joint account and thecircumstances surrounding the subject withdrawals (see Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp.Ctr., 59 AD3d 473, 481 [2009]). Accordingly, the Supreme Court properly, in effect,denied those branches of the plaintiff's cross motion which were for summary judgment on theissue of liability on the first, second, third, fifth, sixth, seventh, and eighth causes of action.
Finally, the parties' arguments with respect to the defendant's counterclaims are not properlybefore this Court. Neither party moved in the Supreme Court with respect to the counterclaimsand, therefore, this Court may not search the record and award summary judgment with respect tothose counterclaims (see State Farm Fire& Cas. Co. v Browne, 12 AD3d 361, 362 [2004]). Angiolillo, J.P., Balkin, Leventhaland Sgroi, JJ., concur.