Opinion
9628/06.
Decided July 20, 2006.
The petitioner's motion for a turnover order, pursuant to CPLR § 5225(b), directing the respondent, ASTORIA FEDERAL SAVINGS LOAN, to pay to the petitioner, $4,462.86 with interest from December 5, 2005, held by said respondent in an account of the judgment debtor, DOREEN CAPONI-CORNACCHIO, and joint account holder, KENNETH A. BROWN, is hereby granted to the extent that the matter is set down for a judicial hearing, as there are issues of fact in dispute with regard to the joint account holders interest in the Astoria Federal account. The respondent, KENNETH A. BROWN, submits an affirmation in opposition and cross-motion for an order pursuant to CPLR § 5240, for the immediate release of the restraint on the movant's joint bank account and also to vacate the levy of execution, is hereby denied without prejudice to renew after the determination of the hearing.
Kenneth A. Brown, the respondent, is the father of the judgment debtor, Doreen Caponi-Cornacchio. He alleges that the joint account, he maintains with his daughter, at Astoria Federal Savings and Loan, "belongs exclusively to me [him] and I [he] placed my [his] daughter's name of (sic) the account merely as a matter of convenience should my [his] wife, who is an invalid, need access to funds when I am [he is] not around" ( see, Affidavit of Kenneth A. Brown in Support of Cross Motion, ¶ 4). He also states that he loaned his daughter $20,000, and a deposit of $10,000 by Doreen Caponi-Cornacchio, into the joint account, was in repayment of the loan.
On September 15, 2005, a judgment was entered against Doreen Caponi-Cornacchio in favor of Velocity Investments, LLC, in the amount of $4,355.46. The petitioner asserts that no payments have been made to date, leaving an outstanding balance of $4,355.46, plus interest from the date of the judgment.
CPLR § 5225(b), allows a special proceeding to be commenced by a judgment creditor, against a person in possession or custody of money or other personal property in which the judgment creditor has an interest. The judgment creditor is required to serve the Notice of Petition upon the non-judgment debtor, the respondent bank, in accordance with CPLR § 403, and the judgment debtor shall be served in the same manner as a summons in an action or by certified mail, return receipt requested ( see generally CPLR § 5225[b]). In the present case, the judgment debtor the respondent, Astoria Federal Savings and Loan, and the non-judgment debtor, Kenneth A. Brown, were served in accordance with the CPLR.
In this special proceeding, the petitioner seeks the turnover of certain funds belonging to the judgment debtor, but in possession of the respondent bank. In support of its application, the petitioner attaches the respondent bank's response to the petitioner's information subpoena. The bank's response indicated that it is in possession of an account under the names of Kenneth A. Brown and Doreen Caponi-Cornacchio (account No. 9001135032) with a total balance of $10,863.42.
In light of the fact that the bank listed the account title of the funds in question as belonging to Kenneth A. Brown and Doreen Caponi-Cornacchio, the account will be treated as a joint bank account. As such, there is a statutory presumption that the establishment of a joint bank account creates a joint tenancy ( see Banking Law § 675[b]). Although a joint account is vulnerable to the levy of a money judgment, as against one joint tenant, such a levy is effective only with regard to the actual interest of that judgment debtor in the account ( see Viggiano v. Viggiano, 136 AD2d 630, 631, 523 NYS2d 874 [2d Dept 1988]). Unless rebutted, the legal presumption that a non-debtor, co-tenant retains one-half interest in the joint account remains ( see Banking Law § 675[b]).
To refute this presumption in a turnover proceeding, pursuant to CPLR § 5225 and § 5227, the joint tenant(s), who is/are challenging this presumption have the burden of proving the actual interest of the judgment debtor in the account, if any ( see, Fragetti v. Fragetti, 262 AD2d 527, 692 N.Y.S.D. 442 (2nd Dept. 1999). The failure of the joint tenants to appear rebuts the presumption that each owes half of the account and entitles the petitioner to the entire account. See, Ford Motor Credit v. Astoria Federal, 189 Misc.2d 475, 733 NY2d 583.
Here, Mr. Brown rebuts the legal presumption that he and his daughter each retain one-half interest in the joint account. He alleges that the full value of the account is his and that his daughter is merely on the account should his ill wife require care and assistance.
In opposition, the petitioner, Velocity Investments, LLC, requests that an evidentiary hearing be conducted, in order to explore the issues set forth in the respondent's papers.
Accordingly, it is ordered that a hearing shall be conducted on August 24, 2006 to determine the parties' interest in said joint bank account.
So ordered.