IN RE: Application of Thomas MULLEN (2000)

Order, Surrogate's Court, New York County (Eve Preminger, S.), entered November 27, 1998, which denied respondent Gerald Linnane's motion to strike as untimely petitioner's proposed decree, and decree, same court and Surrogate, entered November 27, 1998, which directed respondent to pay petitioner the sum of $51,729.70 plus interest, unanimously affirmed, without costs.   Petitioner's appeal from order, same court and Surrogate, entered on or about April 17, 1997, and respondent's appeal from the purported order, same court and Surrogate, dated January 8, 1998, unanimously dismissed, without costs.

 The facts underlying this turnover proceeding were described in our prior decision Mullen v. Linnane, 218 A.D.2d 50, 636 N.Y.S.2d 783, in which we found that the joint accounts in question were true joint accounts and, by reason of that finding, vacated the Surrogate's decree finding to the contrary and remanded for a determination of the parties' respective interests in the accounts.   In our prior decision, we noted that a joint tenant obtains an immediate right, upon creation of a joint account, to withdraw her moiety of the account.   Upon withdrawal of an excess over moiety, the withdrawing joint tenant becomes subject to suit for the excess and, as a result, the joint tenancy is terminated (id., at 55, 636 N.Y.S.2d 783;  see also, Kleinberg v. Heller, 38 N.Y.2d 836, 841-842, 382 N.Y.S.2d 49, 345 N.E.2d 592).   Implicit in our determination that Kathleen Linnane's actions with regard to the accounts were proper (Mullen v. Linnane, 218 A.D.2d, supra, at 55-56, 59, 636 N.Y.S.2d 783), and in our remand for a determination of the parties' respective rights, was the conclusion that she was entitled to withdraw her moiety and that the right of survivorship in the joint accounts was extinguished.  

 Contrary to petitioner's argument, Marrow v. Moskowitz, 255 N.Y. 219, 174 N.E. 460, does not compel a different result.  Marrow does not hold that the withdrawing joint owner forfeits her half-share of the accounts at issue, but stands for the proposition that “where a joint tenant withdraws more than his or her moiety ․ there is an absolute right in the other tenant, during the lifetime of both, to recover such excess” (Kleinberg v. Heller, 38 N.Y.2d 836, 842, 382 N.Y.S.2d 49, 345 N.E.2d 592, supra, citing Marrow v. Moskowitz, 255 N.Y. 219, 174 N.E. 460, supra ).   Furthermore, as noted in this Court's prior decision, withdrawal of more than a half-interest in a joint account “results in the extinguishment of the right of survivorship to the other half-interest of the other joint tenant” (218 A.D.2d, supra, at 55, 636 N.Y.S.2d 783, citing Kleinberg v. Heller, supra ).

 Contrary to petitioner's contention, this Court's direction that the Surrogate consider all of the accounts held in the joint names of decedent and Kathleen Linnane, instead of the five accounts that were initially the subject of the instant turnover proceeding, did not exceed the scope of the Surrogate's authority under SCPA 2103.   Since decedent withdrew more than her moiety in three of eight joint accounts, any claims by decedent against Kathleen with respect to the other five accounts must be set off by her excess withdrawals to result in an equitable disposition.

 The Surrogate properly determined that Kathleen Linnane had a vested interest in one-half of an eighth account that was not collected by either party during their lifetime, since the record reveals that the decedent, acting through her attorney in fact, frustrated Linnane's efforts to collect.   The Surrogate's determination that neither party consented to the excess withdrawals by the other is supported by the record.   Moreover, the burden was properly placed on the party seeking to establish consent to excess withdrawals (Kleinberg v. Heller, supra, 38 N.Y.2d, at 843-844, 382 N.Y.S.2d 49, 345 N.E.2d 592;  cf., Matter of Kessler, 55 Misc.2d 17, 284 N.Y.S.2d 288, affd. 35 A.D.2d 710, 314 N.Y.S.2d 898, affd. 30 N.Y.2d 821, 334 N.Y.S.2d 910, 286 N.E.2d 283).   The allocation of interest and costs was proper.

The Surrogate's determination denying respondent's motion to strike petitioner's proposed decree as untimely, was an appropriate exercise of discretion (see, 22 NYCRR 207.37[b];  Linroc Enter., Inc. v. 1359 Broadway Assoc., 184 A.D.2d 309, 587 N.Y.S.2d 138).

MEMORANDUM DECISION.