In re the Estate of Klecar

207 A.D.2d 732, 616 N.Y.S.2d 611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 1994
• Status: Published

Opinion

—Decree, Surrogate’s Court, Bronx County (Lee Holzman, S.), entered on or about May 7, 1993, which, in a proceeding pursuant to SCPA 2103, directed respondent to deliver to petitioner the money on deposit in a certain bank account upon a finding that the account in question was for the convenience of the decedent and not a joint account between the decedent and respondent, and, order and judgment (one paper), Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about March 9, 1994, which, in a proceeding pursuant to CPLR 5206 (e), granted petitioner’s application for the sale of homestead property owned by respondent to satisfy the above Surrogate’s Court decree, unanimously affirmed, without costs.

The Surrogate correctly determined that respondent has no right to survivorship in the disputed account in the absence of survivorship language on the signature card (Matter of Timoshevich, 133 AD2d 1011, 1012). We also agree with the Surrogate that if a tenancy in common in the account can be presumed, the presumption was rebutted by proof that the account was funded by the decedent with whom respondent stood in a confidential relationship and other evidence that the account was set up as a matter of convenience, and by the absence of evidence that the decedent intended to make a gift to respondent (supra, at 1011-1012; see also, Matter of Camarda, 63 AD2d 837, 839). Concerning the enforcement proceeding, respondent, whose attorney appeared in court on the return date of the application without any papers in opposition thereto, failed to raise any issue of fact that warranted a hearing on the issue of jurisdiction (cf., Green Point Sav. Bank v Taylor, 92 AD2d 910). Concur—Sullivan, J. P., Carro, Ellerin, Kupferman and Asch, JJ.