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