Opinion
January 21, 1980
In a proceeding to recover possession of certain joint bank accounts claimed to be assets of the estate of Otto L. Anrig, the appeal is from a decree of the Surrogate's Court, Suffolk County, entered November 9, 1978, which, after a hearing, directed the appellant to turn over the proceeds and interest of those bank accounts to the administrator of the estate. Decree affirmed, with costs payable by the appellant. The record indicates that appellant entered into a fiduciary and confidential relationship with the decedent. The decedent had been institutionalized for three and a half years before his death and the appellant was managing his affairs during this period pursuant to a power of attorney. Under these circumstances the presumption granted to the appellant as the surviving tenant of the joint bank accounts (see Banking Law, § 675) was rebutted and the burden of proof shifted to the appellant to prove that the joint accounts were valid gifts (see Matter of McMurdo, 56 A.D.2d 602). On this record, the appellant has not established by clear and convincing evidence that the decedent intended to make a gift of the accounts in question (see Matter of Fiumara, 44 N.Y.2d 915; Rametta v. Kazlo, 68 A.D.2d 579). We have considered the remaining contentions of the appellant and find them to be without merit. Mollen, P.J., Lazer, Gibbons and Margett, JJ., concur.