Gutkin v. Manicone

255 A.D.2d 552, 680 N.Y.S.2d 869, 1998 N.Y. App. Div. LEXIS 12928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1998
• Status: Published

Opinion

—In an action to recover damages based on the wrongful conversion of the proceeds of a joint bank account, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated August 22, 1997, as granted the plaintiffs motion for summary judgment against Ralph Manicone, individually, and Delores Manicone.

Ordered that the appeal of the defendant Ralph Manicone, as executor of the estate of Jean D. Manicone is dismissed, as he is not aggrieved by the order appealed from in his representative capacity; and it is further,

Ordered that the order is affirmed insofar as appealed from by the appellants Ralph Manicone and Delores Manicone; and it is further,

Ordered that the plaintiff is awarded costs, payable by the defendants Ralph Manicone, individually, and Delores Mani-cone.

The appellants have failed, on this record, to raise an issue of fact to rebut the presumption that the decedent and the plaintiff intended that the subject account be held in joint tenancy with the right of survivorship (see, Matter of Kleinberg v Heller, 38 NY2d 836; Matter of Camarda, 63 AD2d 837, 838; Matter of Coddington, 56 AD2d 697, 698). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.