IN RE: the ESTATE OF Nathan S. ANCELL

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Surrogate's Court, Westchester County, New York.

IN RE: the ESTATE OF Nathan S. ANCELL, Deceased.

Decided: April 17, 2002

Westermann, Hamilton, Sheehy, Aydelott & Keenan, White Plains, for respondent. McCullogh, Goldberger & Staudt, White Plains, for Susan Darley and another, petitioners.

This is a contested discovery proceeding in which respondent Frances K. Pliska (Pliska) moves to renew or reargue that portion of the Order of this Court dated January 7, 2002, which denied her cross motion for summary judgment under Banking Law § 675. The motion is opposed by the executrixes of the Estate of Nathan S. Ancell.   The motion to reargue is denied, and the motion to renew is granted.   Upon renewal, the Court adheres to its original determination.

 A motion to renew must be based on new facts or a demonstrated change in the law (see, CPLR 2221(e)(2)). On the other hand, a motion to reargue is based on existing facts or law which may have been overlooked or misapprehended by the Court (see, CPLR 2221(d)(2)).

In the instant case, Pliska contends that this Court overlooked the holding in Sutton v. The Bank of New York, 250 A.D.2d 447, 673 N.Y.S.2d 380 and was “silent on the key argument made on behalf of Pliska” which was based on the holding in Sutton.

Pliska further contends that the Appellate Division, First Department's decision in Sutton “changed the law” and, for the first time, permitted the Banking Law § 675 presumption to be applied “even in the absence of survivorship language on the signature card itself.”

At the outset, the Court notes that Pliska has failed to separately state and support each branch of her motion (see, CPLR 2221[f] ).   In addition, the Court is not required to discuss, in its decision, every argument or case made or cited by Pliska.   A court need only give its determination or direction “in such detail as the judge deems proper” (see, CPLR 2219).   However, since other important issues are raised by the motion, the Court shall “decide each part of the motion as if separately made.”

REARGUMENT

The Court did not fail to consider or misapprehend the Appellate Division, First Department's Decision in Sutton.   In fact, that case was carefully considered but, ultimately, the Court chose to rely on other more established precedent in support of its determination.   Therefore, the motion to reargue is denied.

RENEWAL

The Court finds that the “new facts” (consisting of the factual findings made by the trial court in Sutton ) are not the type of additional facts which would justify a grant of renewal.   However, renewal may properly be based upon a demonstrated change in the law, and this portion of Pliska's motion is deserving of additional discussion.

In the January 7, 2001 decision, this Court held that, “[t]he omission of words of survivorship on the signature card ․ precludes the application of the presumption under Banking Law § 675 ․” and “there are issues of fact and credibility ․ as to whether, at common law, a joint tenancy in the account was created” (citations omitted).

It is conceded that the trial court decision in Sutton also held that the Banking Law presumption only applies where specific words of survivorship appear on the signature card.   It is also conceded that the Appellate Division, First Department, unanimously affirmed the trial court's determination in Sutton.   However, it is Pliska's contention that the Appellate Division, First Department, applied the Banking Law § 675 presumption, even without survivorship language on the signature card.

If Pliska is correct, then Sutton has effectively overturned numerous other cases in the First Department (see, e.g., Matter of Klecar, 207 A.D.2d 732, 616 N.Y.S.2d 611;  Matter of Eppstein, N.Y.L.J., April 3, 1997 at p. 30, col. 4;  Estate of Hamburg, 151 Misc.2d 1034, 574 N.Y.S.2d 914;) and stands in stark contrast to the rule adopted in the Third Department (see, Matter of Burns, 126 A.D.2d 809, 510 N.Y.S.2d 732;  Matter of Coon, 148 A.D.2d 906, 539 N.Y.S.2d 534;  Matter of Timoshevich, 133 A.D.2d 1011, 521 N.Y.S.2d 311) and Fourth Department (see, Matter of Camarda, 63 A.D.2d 837, 406 N.Y.S.2d 193;  Matter of Randall, 176 A.D.2d 1219, 576 N.Y.S.2d 712), as well as by the Court of Appeals in the seminal case of Matter of Fenelon, 262 N.Y. 308, 186 N.E. 794.

This Court is not convinced that the First Department, intended to change existing decisional law.   Instead, this Court prefers to read Sutton as being consistent with existing law.   In any event, to the extent Sutton may be viewed as a departure from the existing rule, this Court elects to follow the rule as outlined by the Third and Fourth Departments.

 Thus, absent survivorship language on the signature card, the Banking Law presumption does not apply (see, Matter of Timoshevich, 133 A.D.2d 1011, 521 N.Y.S.2d 311;  Matter of Camarda, 63 A.D.2d 837, 406 N.Y.S.2d 193).  This is so even where, as here, the decedent may have received the bank's rules and regulations applicable to joint accounts (see, Estate of Coon, 148 A.D.2d 906, 539 N.Y.S.2d 534).   In such cases, the party asserting the title of the survivor has the burden of proving that the decedent intended to create a joint tenancy (see, Matter of Thomas, 43 A.D.2d 446, 352 N.Y.S.2d 524).  Once a prima facie showing is made, the burden shifts to the party challenging the title of the survivor who may prevail only by presenting clear and convincing evidence of fraud, undue influence, lack of capacity, or other evidence sufficient to support an inference that the account was created for convenience only (see, Matter of Sabatino, 66 A.D.2d 937, 411 N.Y.S.2d 439;  Matter of Coddington, 56 A.D.2d 697, 391 N.Y.S.2d 760).

The Court also reaffirms that portion of its earlier decision which denied Pliska's motion for summary judgment and the executrix's cross-motion for summary judgment.

In accordance with the foregoing, the motion to reargue and the motion to renew is granted.

ANTHONY A. SCARPINO, Jr., S.