Opinion
345853.
Decided June 27, 2008.
Daniel C. Mooney, Esq., Mattituck, NY, (for Petitioner).
Stephen Hand, Esq., Jaspan Schlesinger Singer Hoffman LLP, Garden City, NY, (for Respondent).
In this proceeding for discovery and turnover of estate assets, the petitioner, Peter Zorskas, as co-executor of the estate of Antanas Zorskas, moves for an order granting summary judgment to him on the issue of whether the proceeds of a certain certificate of deposit is an estate asset and directing the respondent, Ruta Zorskas, to turn over the proceeds of the account to the estate, together with interest from the date of the decedent's death. Ruta opposes the motion.
Antanas Zorskas died on January 25, 2006. His last will and testament dated December 13, 2004 was admitted to probate by a decree of this court dated May 21, 2007, and letters testamentary issued on May 23, 2007 to his son, Peter, and to Ruta, the decedent's surviving spouse. Ruta and the decedent were married on January 11, 1995.
Peter, as co-executor, commenced a proceeding pursuant to SCPA 2103 against Ruta seeking discovery and turnover of assets alleged to belong to the estate, including the proceeds of a certificate of deposit held at Astoria Federal Savings in the names of Ruta and the decedent with a date of death balance of $30,495.00 and a balance on the maturity date (April 12, 2006) of the certificate of deposit of $33,853.00. The proceeds of the account were withdrawn after the decedent's death by Ruta, who claims entitlement to the funds.
Peter's petition also alleged that Ruta was in possession of United States savings bonds that belonged to the estate. Peter's attorney has represented in his reply affirmation that that claim has been resolved and is now moot.
Peter claims that the account at Astoria Federal Savings had been in existence for many years before Ruta's name was added to it on July 3, 1995. The account holders are listed on the passbook as Antanas Zorskas and Ruta Zorskas. Next to each of their names appears the word "JOINT (OR)." On the next page of the passbook in the account summary section the words, "JOINT WITH RIGHT OF SURVIVORSHIP (OR)" and "Joint (OR) PRIM" and "Joint (OR) SECO" are typed. Title to the account was never changed during their marriage. The certificate of deposit that was issued on July 3, 1995 was in the amount of $38,498.73. It was rolled over on January 2, 1997, July 3, 1998, April 7, 1999, April 10, 2000, and October 12, 2005.
In July 1995, six months after they married, the decedent and Ruta entered into a nuptial agreement. The respective attorney for each party to the agreement acknowledged his client's signature, Ruta's on July 12, 1995 and the decedent's on July 27, 1995. The agreement provides, in pertinent part, that each party waived, discharged, released and renounced the right to share in or elect against the other's estate (Article II [B]). The agreement also states that "[n]othing in this Agreement shall be construed as a waiver or renunciation by either party of any bequest or devise made to him or her in excess of the provision of this ARTICLE II, in the Last Will and Testament of the other" (Article II [C]). Under the nuptial agreement, Ruta was allowed to live in the decedent's residence for a period of up to one year provided she paid all of the expenses (Article II [D]), and she had the right to receive the decedent's pension and social security benefits upon his death (Article III [D]). Schedule A annexed to the nuptial agreement lists the decedent as having a net worth of $61,000.00 in assets and $0.00 in liabilities, and Ruta as having $10,000.00 in assets and $0.00 in liabilities.
In his will, the decedent bequeathed to Ruta all of his tangible personal property (Article Second), $100,000.00 (Article Third) and his residuary estate (Article Fourth), and he left all of his real property, including his house in Great Neck, to Peter, although he gave Ruta the right to reside there rent free for at least one year as long as she paid the normal carrying charges (Article Third). In decision no. 779 (December 14, 2007), this court determined in a proceeding for construction of the will that the decedent intended that payment of the $100,000.00 legacy to Ruta under Article Third must be made even if it required a charge upon the real estate.Summary judgment may be granted only when it is clear that no triable issue of fact exists ( see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324; Phillips v Joseph Kantor Co., 31 NY2d 307, 311). The court's function on a motion for summary judgment is "issue finding" rather than issue determination ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404), because issues of fact require a hearing for determination ( Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067); Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party ( Marine Midland Bank, N.A. v Dino Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable issue, the motion must be denied ( Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).
If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial ( see Zuckerman v City of New York, 49 NY2d 557, 562). In doing so, the party opposing the motion must lay bare his proof ( see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment ( Zuckerman v City of New York, 49 NY2d 557, 562; see Prudential Home Mtge Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).
Peter asserts that the decedent and Ruta were in a fiduciary relationship by dint of their marriage, that the decedent was dependent on Ruta, and that the account was a convenience account. He contends that Ruta voluntarily disclaimed any interest in the certificate of deposit when she signed the nuptial agreement nine days after the certificate of deposit was issued and listed her net worth in schedule A of the agreement at $10,000.00. Peter also claims that the decedent claimed total ownership of the account when he listed his net worth at $61,000.00. Peter argues that this rebuts the presumption under New York Banking Law section 675 that making a deposit in the name of the depositor and another to be paid to either or the survivor is prima facie evidence that the depositor intended to create a joint tenancy. Peter also argues that the fact that three checks he annexes as an exhibit to his affidavit are payable from the account to the decedent alone is additional evidence that it was a convenience account.
"[T]he opening of an account in the names of two people in facial form to be paid or delivered to either, or the survivor of them evinces an intention to create a joint tenancy (Banking Law, § 675, subd [b]), thereby placing the burden of refutation on anyone who challenges it. That does not prevent a joint account from being attacked for fraud, undue influence or lack of capacity, all of which go to its inception, but the burden of proving such a claim still rests on the shoulders of whoever asserts it"( Kleinberg v Heller, 38 NY2d 836, 840 [internal quotation marks and additional internal citations omitted]).
The presumption of a joint tenancy may be rebutted only with direct evidence or by clear and convincing circumstantial proof tending to show that the joint account was opened in that form as a matter of convenience or with evidence of fraud, undue influence or lack of capacity ( Matter of Camarda, 63 AD2d 837, 838 [4th Dept 1978] [citations omitted]). If, however, there is a confidential relationship between the decedent and the alleged joint tenant, the latter is required to establish, by clear and convincing evidence, that the transfers were fair, voluntarily and knowingly made by the decedent and were not influenced by fraud, duress or coercion ( Matter of Timoshevich, 133 AD2d 1011 [3d Dept 1987]). Similarly, if there is a fiduciary relationship, the transaction will be subject to closer scrutiny ( id.). By virtue of a fiduciary relationship, the joint tenant will have the burden to prove, by clear and convincing evidence, that the account was not a matter of convenience ( Matter of Byoir, NYLJ, Jan. 31, 2000, at 29 [Sur Ct, New York County]).Peter is incompetent under CPLR 4519 to offer evidence of the decedent's purported dependence on Ruta in support of his motion for summary judgment ( Phillips v Joseph Kantor Co., 31 NY2d 307, 3120314 [1972]). Further, although Peter attempts to characterize Ruta's relationship with the decedent as a fiduciary relationship by dint of their marriage, the record shows only that they enjoyed a typical spousal relationship. His efforts to portray the relationship as "confidential," as that term is defined in this context, is belied by the family relationship, not to mention the facts themselves. The law recognizes that a close family relationship "counterbalances any contrary legal presumption; and explanation by the beneficiary is not required" (NY PJI 7:56 [in the context of a probate contest], citing Matter of Walther, 6 NY2d 49, Matter of Moskowitz, 279 App Div 660 [2d Dept 1951]).
The following factors are considered in determining whether a joint account is a convenience account or a true joint account: whether the decedent was the sole depositor to the account ( Matter of Van Bogelen, 204 AD2d 650 [2d Dept 1994]); whether the creation of a survivorship interest would deviate significantly from the decedent's testamentary plan (Matter of Johnson , 7 AD3d 959 [3d Dept 2004]; Matter of Camarda, 63 AD2d 837 [4th Dept 1978]); whether the account was used exclusively by the decedent during his lifetime ( Matter of Camarda, 63 AD2d 837 [4th Dept 1978]); whether the decedent retained the right to withdraw the proceeds ( Matter of Niesz, NYLJ, Apr. 24, 1996, at 32, col 1 [Sur Ct, Westchester County]); and the conduct of the surviving joint tenant ( Matter of Boyd, 186 AD2d 394 [1st Dept 1992]).
Here, Peter asserts, but does not provide proof, that the decedent was the sole depositor to the account and that he alone used the account. Further, although Peter alleges that the decedent entered into the nuptial agreement as a mechanism for providing for his grandchildren, the record is devoid of any evidence to support his contention. Morever, the grandchildren are provided for in the decedent's will only if Peter predeceased the decedent, in contrast to Ruta, to whom the decedent bequeathed $100,000.00, his personal property and his residuary estate. Nothing in the nuptial agreement or the will precluded the decedent from opening and maintaining a joint account with Ruta.
Peter asserts that the fact that Ruta listed her net worth on the nuptial agreement as $10,000.00 is enough to rebut the presumption that arises under Banking Law section 675. As mentioned above, the source of the funds for the purchase of the certificate of deposit is not a part of the record before this court. For all intents and purposes, Ruta could have supplied any or all of it. In any event, in those cases where an account is determined to be a true joint account each joint tenant is vested with a present one-half interest in the money deposited even though one of them was the sole donor ( Matter of Kleinberg, 38 NY2d 836, 841 [citation omitted]; Matter of Bricker v Krimer, 13 NY2d 22, 27 [citations omitted]). Also unknown is what constituted the $10,000.00 and the $61,000.00 Ruta and the decedent listed on schedule A of the nuptial agreement as their respective net worth. Ruta points out that since the decedent owned a house at the time he executed the agreement, his net worth was well in excess of the $61,000.00 he stated his net worth to be. The fact that Ruta claimed her net worth to be $10,000.00 is hardly the clear and convincing evidence needed to rebut the presumption that exists in this instance and does not create a triable question of fact. Peter has failed to show any evidence that the account, which was comprised of a certificate of deposit, was intended or used as a convenience account.
Peter relies on two cases in support of his motion. Neither is helpful to him. In Brezinski v Brezinski ( 94 AD2d 969 [4th Dept 1983]), the appellate court sustained the trial court's determination that the elderly plaintiff-depositor added her son's name to certain bank accounts as a matter of convenience so that he could do her banking for her since she could no longer walk to the bank ( id. at 970). In Matter of Richichi ( 38 AD3d 558 [2d Dept 2007]), the Second Department affirmed the trial court's determination to grant the petitioner's motion for summary judgment. The appellate court held that the petitioner, who was the decedent's son and the co-executor of the decedent's estate, "rebutted the presumption of joint tenancy through clear and convincing evidence, including the decedent's will and the 1998 agreement signed by her children, both of which expressly stated that the joint accounts had been established for the sake of convenience" ( id. at 559). Here, Peter has failed to present the evidence necessary to rebut the presumption or to raise a triable issue of fact.
Where a party does not cross-move for summary judgment, the court is authorized by CPLR § 3212(b) to "search the record and grant summary judgment to a nonmoving party with respect to an issue that was before the court" ( Selter v MCM Distributors, Inc., 299 AD2d 332, 333 [2d Dept 2002]; Dunham v Hilco Constr. Co., 89 NY2d 425). The court has searched the record in the instant proceeding, and it is clear that no triable issue of fact exists as to whether the account was a convenience account. The court finds that the proceeds of the account belong to Ruta as the joint tenant and are not an estate asset.
Accordingly, Peter's motion for an order granting summary judgment is denied, and the court grants summary judgment to Ruta.
Ruta's request, contained in her opposition papers, for sanctions against Peter is denied as she did not move for that relief and, additionally, the court finds no basis for awarding them ( 22 NYCRR 130-1.1).
Settle decree.