Summary
holding that account was a "convenience account" because owner rebutted presumption that joint account was intended
Summary of this case from Schacht v. KunimuneOpinion
January 19, 1988
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order is reversed, on the law and the facts and in the exercise of discretion, with costs, and the motion is granted; and it is further,
Ordered that the plaintiff shall pay to the Sheriff of Nassau County his levy fee as provided in CPLR 8011 (b) (2), and poundage as provided in CPLR 8012 (b) (1).
The opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to the levy of a money judgment by the judgment creditor of one of the joint tenants (Denton v Grumbach, 2 A.D.2d 420, 422; see also, Banking Law § 675).
Here the defendant husband and his mother were joint tenants in an account against which plaintiff wife sought to levy a money judgment for postdivorce child support arrears. The defendant husband and his mother as an "interested person", as contemplated in CPLR 5240 (see, Triangle Pac. Bldg. Prods. Corp. v National Bank, 62 A.D.2d 1017) sought to vacate the levy claiming that the account was intended by the mother to be a convenience account for her benefit and that the defendant husband had no interest in the account. The plaintiff wife does not dispute this contention relying only on the fact that because of the form of the account, the defendant husband had a present interest in the account and could at any time withdraw the entire sum. That being so, the plaintiff wife claims that the joint account was subject to her levy pursuant to CPLR 5201 (b).
By sworn affidavit the defendant husband and his mother have shown that the funds in this joint account are traceable to various death benefits she received upon her husband's death in 1981. The particular account was opened in 1984 with a part of those death benefits and the defendant husband's name was added as a convenience in the event of the mother's illness or disability. The mother maintained sole possession of the bankbook, took possession of all interest earned and paid all taxes due on the interest. Both the defendant husband and his mother stated that the defendant husband made no deposits to or withdrawals from the account.
The burden of proof to rebut the presumption that a joint account was intended rather than a convenience account in that form is upon the defendant husband and his mother (Sherman v Georgopoulos, 84 A.D.2d 811). The facts presented showed an intention to create a convenience account and not to give the defendant husband any interest in the account. Thus, the presumption that a joint account was intended was rebutted (Wacikowski v Wacikowski, 93 A.D.2d 885). Absent any controversion of those facts, the plaintiff wife, as a matter of law (see, Matter of Phelps v Kramer, 102 A.D.2d 908), can no longer rely on the presumptive rights of her ex-husband in the account as a joint tenant.
Even where a joint account is vulnerable to the levy of a money judgment as against one joint tenant, such a levy is effective only as to the actual interest of that judgment debtor in the account (Olshan v East N.Y. Sav. Bank, 28 F. Supp. 727 [US Dist Ct., ED N Y 1939]; Annotation, Attachment-Joint Bank Account, 11 ALR3d 1465, 1473).
We find that in light of the above disposition, the plaintiff is responsible for all fees and poundage due to the Sheriff of Nassau County (see, CPLR 8012 [b]; Matter of Associated Food Stores v Farmer's Bazaar, 126 Misc.2d 541). Mangano, J.P., Brown, Lawrence and Sullivan, JJ., concur.