Laurence M. Jacks, appellant, v. Jeanmarie D'Ambrosio, etc., et al., respondents. (2010)

Submitted-November 20, 2009

DECISION & ORDER

In an action, inter alia, to recover damages for conversion, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Cozzens, J.), dated December 2, 2009, which, upon a decision of the same court dated September 3, 2008, made after a nonjury trial, is in favor of the defendants and against him dismissing the complaint.

ORDERED that on the Court's own motion, the notice of appeal from the decision is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c] );  and it is further,

ORDERED that the judgment is affirmed, with costs.

Banking Law § 675 provides that, when a deposit has been made with any banking organization in the name of the depositor and another person “in form to be paid or delivered to either, or the survivor of them, such deposit ․ and any additions thereto made ․ shall become the property of such persons as joint tenants” (Banking Law § 675[a] ).   In the absence of fraud or undue influence, such deposit will be prima facie evidence of the parties' intention to create a joint tenancy (see Banking Law § 675[b] ).  Contrary to the plaintiff's contention, the defendants rebutted the statutory presumption by presenting “evidence showing that the depositor established the account for convenience and not with the intention of conferring a present beneficial interest on” the plaintiff (Matter of Friedman, 104 A.D.2d 366, 367, affd 64 N.Y.2d 743;  see Fragetti v. Fragetti, 262 A.D.2d 527;  Viggiano v. Viggiano, 136 A.D.2d 630;  Brezinski v. Brezinski, 94 A.D.2d 969;  Wacikowski v. Wacikowski, 93 A.D.2d 885).

The Supreme Court also appropriately concluded that the familial relationship between the defendant Jean Marie D'Ambrosio and the decedent in this case counterbalanced any legal presumption that the decedent's decision to withdraw the funds from the subject bank accounts was the product of undue influence (see Matter of Walther, 6 N.Y.2d 49, 56;  Matter of Swain, 125 A.D.2d 574, 575).   Thus, the burden of proving undue influence rested with the plaintiff (see Matter of Connelly, 193 A.D.2d 602, 602).   The plaintiff failed to meet his burden by adducing evidence that undue influence was actually utilized (see Matter of Fiumara, 47 N.Y.2d 845, 846;  Matter of Walther, 6 N.Y.2d at 55;  Matter of Chiurazzi, 296 A.D.2d 406).

FISHER, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court