| Matter of Grancaric |
| 2012 NY Slip Op 00169 [91 AD3d 1104] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Nino Grancaric, Deceased. Dinko Grancaric, asAdministrator of the Estate of Nino Grancaric, Deceased, Appellant; Arlene Scheurer et al.,Respondents. |
—[*1] Livingston T. Coulter, Schuylerville, for Arlene Scheurer, respondent. Lombardi, Walsh, Wakeman, Harrison, Amodeo & Davenport, P.C., Albany (Paul W.Davenport of counsel), for Cheryl Macri, respondent.
Spain, J.P. Appeal from an order of the Surrogate's Court of Rensselaer County (Hummel,J.), entered January 19, 2011, which, in a proceeding pursuant to SCPA 2103, among otherthings, granted respondent Cheryl Macri's cross motion for summary judgment.
Decedent passed away in 2006, survived by his life partner, respondent Arlene Scheurer,whom he had lived with for almost 30 years. Scheurer owned and operated two steel paintingbusinesses and, prior to injuring his back in 1996, decedent worked as a supervisor and a painterin Scheurer's businesses but did not accumulate any significant savings. Scheurer's businesses,however, were profitable and, to save for the couple's retirement and protect her assets frombusiness-related liability, she asked decedent and her sister, respondent Cheryl Macri, to openjoint bank accounts with rights of survivorship, where Scheurer then deposited her money.Likewise, decedent and Macri were conveyed multiple parcels of real property—each[*2]allegedly obtained with Scheurer's funds—as jointtenants with rights of survivorship. No evidence was submitted that decedent contributed anymoney to the joint bank accounts or the real property acquisitions. A few months after decedent'sdeath, petitioner, decedent's estranged brother, successfully petitioned for letters ofadministration. Scheurer commenced a proceeding to admit decedent's will—in which shewas named beneficiary—to probate, to which petitioner objected and, following a trial,probate was denied based on the jury's finding that the will was not properly executed. Onappeal, we affirmed the jury's verdict (Matter of Grancaric, 68 AD3d 1279 [2009]).
Petitioner then filed the instant petition pursuant to SCPA 2103 to recover the assets in thejoint bank accounts and the real property on behalf of the estate. After discovery, petitionermoved for summary judgment and Macri cross-moved for summary judgment. Surrogate's Courtdenied petitioner's motion and granted Macri's cross motion. On petitioner's appeal, we nowaffirm.
When a bank account is opened in two names, "in form to be paid or delivered to either, orthe survivor of them" (Banking Law § 675 [a]) and survivorship language appears on ajoint bank account's signature card, a statutory presumption arises that the parties intended tocreate a joint account with rights of survivorship (see Matter of Corcoran, 63 AD3d 93, 95 [2009]; Matter ofStalter, 270 AD2d 594, 595 [2000], lv denied 95 NY2d 760 [2000]; Matter ofCamarda, 63 AD2d 837, 838 [1978]). Petitioner seeks to recover assets from six bankaccounts held by decedent and Macri, two First Niagara Bank accounts and four Key Bankaccounts. The signature cards of both First Niagara accounts clearly include survivorshiplanguage. As such, the presumption arises, thereby shifting the burden to petitioner, as the partychallenging the title of the survivor, to establish—by clear and convincingevidence—fraud, undue influence, lack of capacity or, as petitioner asserts here, that theaccounts were only opened as a matter of convenience and were never intended to be jointaccounts (see Matter of Corcoran, 63 AD3d at 96; Matter of Stalter, 270 AD2d at595-596).
Petitioner failed to present any evidence raising a material issue of fact on the issue ofwhether decedent's estate is entitled to these accounts. He relies on Macri's admissions that theaccounts were created for the convenience of Scheurer, in that they were designed to protectScheurer's assets, to establish that the accounts were convenience accounts and not valid jointaccounts. This argument misconstrues the law. A bank account that is labeled as joint willnevertheless be held to remain the sole property of the depositor where it is found that theaccount was established "as a matter of convenience for one cotenant and that no jointtenancy was intended" (Sperrazza v Kail, 267 AD2d 692, 694 [1999] [internal quotationmarks and citation omitted]; see Matter of Corcoran, 63 AD3d at 96; Fischedick vHeitmann, 267 AD2d 592, 592 [1999]). Absolutely no evidence exists that the account wasestablished for the convenience of either cotenant; petitioner relies solely on testimony at the willcontest trial that the accounts were established for Scheurer's benefit. Indeed, even if we were toentertain the argument that this rule of law could apply to an account where the only"convenience" involved is the sheltering of one's assets, "[s]ince [Scheurer] was not a cotenanton either account, neither account can be considered a convenience account for her"(Sperrazza v Kail, 267 AD2d at 694).
With regard to the Key Bank accounts, the presumption of survivorship rights does not arisebecause the signature cards for these accounts do not include survivorship language (see[*3]Matter of Timoshevich, 133 AD2d 1011, 1012[1987]).[FN1]Hence, it was incumbent upon respondents to establish that Scheurer intended to create jointaccounts with survivorship rights (see Matter of Corcoran, 63 AD3d at 97). We hold thatrespondents met this burden and that petitioner failed to raise a triable issue of fact which wouldhave precluded summary judgment. The Key Bank account signature card simply states that theaccount is "joint"; however, the agreement and disclosure statement accompanying the accountsclearly provides that "all deposits in joint Accounts are the property of each owner as jointtenants with rights of survivorship." Further, the undisputed testimony of Scheurer was that herintent, in funding all of the subject accounts, was to create joint accounts with rights ofsurvivorship. As petitioner provides no contrary evidence of Scheurer's intent and, as discussedabove, he fails to support the argument that any of the accounts were "convenience" accounts, wehold that, as the survivor of these joint accounts with rights of survivorship, Macri took legal titleto each of the subject accounts (see Matter of Stalter, 270 AD2d at 596; compare Matter of Johnson, 7 AD3d959, 960 [2004], lv denied 3 NY3d 606 [2004]; Fischedick v Heitmann, 267AD2d at 592-593).
Turning to the real property at issue, we note that petitioner does not directly challengeSupreme Court's holding that each parcel was conveyed to decedent and Macri as joint tenantswith rights of survivorship, and he fails to submit any evidence raising a triable issue of fact thatthe properties were not transferred as such, or that there was any other deficiency in Macri's titleas survivor to these properties (seeGoetz v Slobey, 76 AD3d 954, 956 [2010]). The only argument with respect to the realproperty found in petitioner's brief pertains to his challenge to Supreme Court's alternate findingthat, if the assets did not pass by operation of law to Macri, then a constructive trust should beimposed in favor of Scheurer.[FN2]
We find no need to invoke the doctrine of constructive trust in the context of this proceeding,where the property passed to Macri by operation of law, and Scheurer, the potential beneficiaryof the constructive trust, has not objected to Macri's ownership or alleged any breach of promiseon the part of Macri. A constructive trust is a " 'fraud-rectifying' " remedy (Bankers Sec. LifeIns. Socy. v Shakerdge, 49 NY2d 939, 940 [1980]; see Oakes v Muka, 69 AD3d 1139, 1141-1142 [2010], appealdismissed 15 NY3d 867 [2010]) which "may be imposed where a party, because of aconfidential relationship, transfers property in reliance upon a promise of another which islater breached, resulting in unjust enrichment" (Sperrazza v Kail, 267 AD2d at 694[emphasis added]). Here, although Macri and Scheurer testified at the trial that the transfers werestructured as such to protect Scheurer's assets from claims against the businesses that she owned,Macri continues to acknowledge that she holds the assets for Scheurer's benefit. Under thesecircumstances, no constructive trust is necessary (compare Sharp v Kosmalski, 40 NY2d119, 123 [1976]).[*4]
Petitioner's remaining contentions are unpersuasive.
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with one bill of costs.
Footnote 1: Only one signature card wasprovided in the record, but no dispute exists that each of the Key Bank accounts was set upidentically.
Footnote 2: Notably, one of the deeds didnot contain survivorship language but, given (1) the trial testimony establishing that this was theproduct of law office error, and (2) petitioner's failure to address the issue on appeal, we find anyobjection based upon the absence of such language to be abandoned.