        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

426
CA 14-01661
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


BRENDA C. HARRINGTON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARY A. BRUNSON, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


FORSYTH, HOWE, O’DWYER, KALB & MURPHY, P.C., ROCHESTER (SANFORD R.
SHAPIRO OF COUNSEL), FOR DEFENDANT-APPELLANT.

MORGENSTERN DEVOESICK, PLLC, PITTSFORD (ROBERT D. SCHULTZ OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered January 29, 2014. The judgment granted in
part the motion of plaintiff for summary judgment and awarded
plaintiff money damages.

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by denying plaintiff’s motion except to the extent
that it sought summary judgment on her claim in the amount of $3,000
transferred from Account No. 8665 following decedent’s death, and as
modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
funds that were transferred by defendant from two joint bank accounts
(joint accounts) opened by plaintiff and her aunt, Hazel C. Smith
(decedent), in 2006. In 2009 decedent executed a power of attorney
naming defendant, decedent’s sister, as her agent, and granting
defendant powers including, inter alia, “banking transactions.”
Defendant thereafter added her name to the joint accounts, i.e.,
Account Numbers 8665 and 8601, and in 2012 defendant opened a new
joint account (new account) in the names of decedent and defendant as
decedent’s power of attorney. Defendant then transferred funds from
the joint accounts into the new account.

     Plaintiff moved for summary judgment awarding her judgment in the
amount of the funds transferred by defendant from the joint accounts,
and Supreme Court granted the motion in part. At the outset, we
reject defendant’s contention that the court should have denied the
motion in its entirety because the notice of motion failed to specify
a return date (see CPLR 2214 [a]). Defendant failed even to allege
that she was prejudiced by the omission of the return date on the
notice of motion, and thus the court properly disregarded the omission
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                                                          CA 14-01661

(see Brummer v Barnes Firm, P.C., 56 AD3d 1177, 1178-1179). The court
also properly disregarded plaintiff’s failure to file a consent to
substitution of counsel form pursuant to CPLR 321 (b) before her
current attorney filed the summary judgment motion (see Bevilacqua v
Bloomberg, L.P., 70 AD3d 411, 412). In addition, inasmuch as
plaintiff established good cause for her delay in making the motion
two days after the period specified in CPLR 3211 (a) expired, the
court properly entertained the motion (see Cooper v Hodge, 13 AD3d
1111, 1112; see generally Brill v City of New York, 2 NY3d 648, 652).

     On the merits, we conclude that the court properly granted
plaintiff’s motion to the extent that it sought recovery of funds
transferred after decedent’s death by defendant. Defendant’s power of
attorney terminated by operation of law upon decedent’s death (see
General Obligations Law § 5-1511 [1] [a]; Vellozzi v Brady, 267 AD2d
695, 695). Plaintiff submitted undisputed evidence that, after
decedent’s death, defendant transferred $3,000 from Account No. 8665,
and thereby established that she is entitled to recover that amount.

     The court erred, however, in granting plaintiff’s motion to the
extent that it sought half of the funds transferred from the joint
accounts by defendant prior to decedent’s death. Contrary to the
court’s determination, we conclude that the statutory presumption of
joint tenancy set forth in Banking Law § 675 does not apply to the
joint account inasmuch as “the account documents do not contain the
necessary survivorship language” (Matter of Degnan, 55 AD3d 1238,
1239; see Matter of Randall, 176 AD2d 1219, 1219).

     We note in any event that the statutory presumption may be
rebutted “by providing direct proof that no joint tenancy was intended
or substantial circumstantial proof that the joint account[s] had been
opened for convenience only” (Wacikowski v Wacikowski, 93 AD2d 885,
885, lv denied 60 NY2d 553). Even assuming, arguendo, that the
statutory presumption of joint tenancy applies to the joint accounts,
we conclude that defendant submitted evidence tending to rebut the
statutory presumption that is sufficient to raise a triable issue of
fact whether, “at the time the accounts were created, the accounts
were opened as a matter of convenience” (Matter of Harley, 186 AD2d
1020, 1020; see Matter of Yaros, 90 AD3d 1063, 1064). In particular,
defendant submitted evidence establishing, inter alia, that decedent
was the sole depositor of the joint accounts, and that plaintiff never
withdrew funds from the joint accounts during decedent’s lifetime (see
Matter of Corcoran, 63 AD3d 93, 97). In addition, defendant submitted
evidence establishing that decedent’s creation of a joint tenancy with
the right of survivorship in the joint accounts “would represent a
substantial deviation from [her] previously expressed testamentary
plan” (Yaros, 90 AD3d at 1064).

     We therefore modify the judgment by denying plaintiff’s motion
except to the extent that it sought recovery of $3,000 from Account
No. 8665 transferred after decedent’s death.

     All concur except DEJOSEPH, J., who dissents and votes to affirm
in the following memorandum: I respectfully dissent. In my view,
                                 -3-                           426
                                                         CA 14-01661

Supreme Court properly granted plaintiff’s motion for summary
judgment. Therefore, I would affirm.

     Specifically, I disagree with the majority on the issue whether
the presumption under Banking Law § 675 applies. The majority,
quoting Matter of Degnan (55 AD3d 1238, 1239), concludes that the
statutory presumption does not apply to the joint accounts in this
case inasmuch as “ ‘the account documents do not contain the necessary
survivorship language.’ ” It was conceded by defendant, however, that
there is language on the upper left corner of both signature cards
that reads: “Accounts with multiple owners are joint, payable to
either owner or the survivor.” In my view, that language constitutes
the “necessary survivorship language” referenced in Degnan and the
presumption therefore applies (see § 675 [b]). Unlike in the cases
relied on by the majority, the language on the signature cards in this
case does not merely state that the accounts were “joint” (cf. Degnan,
55 AD3d at 1239; Matter of Randall, 176 AD2d 1219, 1219).

     I further disagree with the majority that defendant submitted
evidence tending to rebut the statutory presumption that is sufficient
to raise a triable issue of fact. Rather, I agree with the court that
defendant merely relied on her own conclusory assertions that the
accounts were convenience accounts (see Matter of Signature Bank v
HSBC Bank USA, N.A., 67 AD3d 917, 918-919; Matter of Stalter, 270 AD2d
594, 596-597, lv denied 95 NY2d 760).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
