Matter of Yee v (Chiang) 2024 NY Slip Op 31773(U) May 20, 2024 Surrogate's Court, New York County Docket Number: File No. 2015-733/B Judge: Rita Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK MAY 2 0 2024 COUNTY OF NEW YORK ------------------------------------------------------------------------x In the Matter of the Petition of DAVID YEE, as Co-Executor of the Will of
RICHARD CHIANG, DECISION and ORDER File No.: 2015-733/B Deceased,
For Discovery and Turnover of Property Withheld from the Estate Pursuant to SCP A 2103. ------------------------------------------------------------------------x MEL LA, S.:
The court considered the following papers (CPLR 2219[a]) in determining the motions described below.
Documents Considered Numbered Notice of Motion for Summary Judgment by Respondent Mary Ann S. Lee, Affidavit of Naomi Levin, Esq., in Support, with Exhibits, and Memorandum of Law in Support 1,2,3
Affirmation of Jaclene D' Agostino, Esq., in Opposition to Motion, with Exhibits, and Memorandum of Law in Opposition 4, 5
Affidavit of Naomi Levin, Esq., in Further Support of Respondent's Motion for Summary Judgment, with Exhibits, and Reply Memorandum of Law 6, 7
Notice of Motion for Summary Judgment by Petitioner David Yee, Affidavit of Jaclene D' Agostino, Esq., in Support, with Exhibits, and Memorandum of Law in Support 8,9,10
Affidavit of Naomi Levin, Esq., in Opposition to Motion, with Exhibits, and Memorandum of Law 11,12
Reply Affidavit of Jaclene D' Agostino, Esq., with Exhibits, and Reply Memorandum of Law in Further Support of Motion for Summary Judgment 13,14
At the call of the calendar on April 5, 2022, the court denied cross-motions for summary
judgment (CPLR 3212) in this contested turnover proceeding (SCPA 2103) in the estate of
Richard Chiang. The turnover proceeding was commenced by Co-Executor David Yee
[* 1] (Petitioner), who alleges that the $103,455.24 balance in decedent's JP Morgan Chase Bank
account (Account), which his cousin and Co-Executor Mary Ann S. Lee (Respondent) collected
after decedent's death, purportedly as joint tenant with right of survivorship, is estate property. 1
Background
Decedent died January 3, 2015, at the age of 85, survived by his wife Wei Lu, who post-
deceased in October 2016. Under his July 28, 2014 will, which was admitted to probate without
objection, decedent provided for his tangible personal property to be divided among his nieces
and nephews, including Petitioner and Respondent, and left his residuary estate to a trust he had
previously established. Petitioner and Respondent, as the nominated Co-Executors, received
Letters Testamentary in May 2016. After the dispute between the Co-Executors arose over the
estate's entitlement to the proceeds of the Account, the parties engaged in discovery and then
filed the instant cross-motions for summary judgment.
The parties offer sharply different narratives about the Account and decedent's intent
with respect to it, but there is no dispute that decedent, accompanied by Respondent, opened the
Account at Chase in April 2012, with an initial deposit of $103,613.94, none of which
Respondent contributed. Nonetheless, the signature card decedent and Respondent signed at the
time states that the Account's title is "Richard Chiang or Mary Ann S Lee" and refers to the
ownership type of the account as "Joint." The signature card also includes language indicating
that, by signing, decedent and Respondent: (1) acknowledged receipt of Chase's "Account Rules
and Regulations or other applicable account agreement" and (2) agreed "to be bound by the
terms and conditions contained therein." The Deposit Account Agreement, to which the
signature card referred, reads, in relevant part:
1Alternatively, Petitioner asks that, if the Account "is deemed a tenancy in common," Respondent should be directed to turn over half the proceeds from the account or $51,727.64.
[* 2] "a. Joint account with rights of survivorship
If a joint account has rights of survivorship, and one joint owner dies, the account will be paid to the surviving joint owners. The estate of the deceased owner will have no rights to the account.
*** "c. When survivorship rights apply
Except as otherwise stated in this paragraph, a joint account has rights of survivorship unless you clearly indicate on the signature card and in the account title that the account is created without these rights."
Chase mailed the Account's statements to decedent's address and only decedent's name
appears on the Account's checks. It is undisputed that the funds in the Account were used
exclusively to pay for the personal needs of decedent and his wife.
After decedent's death, the co-Executors filed the estate's Federal Estate Tax return (IRS
706) which listed the account as a "joint asset" with Respondent.
Discussion
At issue in these cross-motions is whether, as a matter of law, the Account can be
considered a joint account with rights of survivorship, in which case Respondent would be
entitled to its proceeds, or a convenience account, in which case its proceeds would be an estate
asset.
Summary judgment cannot be granted unless it clearly appears that no genuine triable
issues of fact exist (see Phillips v Kantor & Co., 31 NY2d 307 [1972]). The movant must make
a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence in admissible form, to demonstrate the absence of any material issue of fact (see
Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). If such a showing is made, the burden shifts to
the party opposing the motion to come forward with proof in admissible form sufficient to
[* 3] establish the existence of material issues of fact or provide an acceptable excuse for the failure to
do so (see Zuckerman v City of New York, 49 NY2d 557 (1980]). The party resisting summary
judgment is entitled to every favorable inference that can reasonably be drawn from the evidence
(see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]). Such evidence may
include hearsay "so long as it is not the only proof submitted" (see Bishop v Maurer, I 06 AD3d
622, 622 [1st Dept 2013 ]). In addition, evidence that might be barred at trial under CPLR 4519
(Dead Person's Statute) can be used to oppose summary judgment (see Phillips v Joseph Kantor
& Co., 31 NY2d at 315). It is clear, however, that "mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient" to raise an issue of fact (Zuckerman, 49
NY2d at 562).
To establish her prima facie case that the Account was a joint account with rights of
survivorship, Respondent relied on a copy of the signature card, the Deposit Account Agreement,
her deposition testimony describing her relationship with decedent viz-a-viz the Account, and the
Affidavit of decedent's long-time accountant Berge Avedisian which stated that decedent wanted
to give Respondent $100,000 for relocating from Hawaii to New York to help decedent. Based
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Matter of Yee v (Chiang) 2024 NY Slip Op 31773(U) May 20, 2024 Surrogate's Court, New York County Docket Number: File No. 2015-733/B Judge: Rita Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK MAY 2 0 2024 COUNTY OF NEW YORK ------------------------------------------------------------------------x In the Matter of the Petition of DAVID YEE, as Co-Executor of the Will of
RICHARD CHIANG, DECISION and ORDER File No.: 2015-733/B Deceased,
For Discovery and Turnover of Property Withheld from the Estate Pursuant to SCP A 2103. ------------------------------------------------------------------------x MEL LA, S.:
The court considered the following papers (CPLR 2219[a]) in determining the motions described below.
Documents Considered Numbered Notice of Motion for Summary Judgment by Respondent Mary Ann S. Lee, Affidavit of Naomi Levin, Esq., in Support, with Exhibits, and Memorandum of Law in Support 1,2,3
Affirmation of Jaclene D' Agostino, Esq., in Opposition to Motion, with Exhibits, and Memorandum of Law in Opposition 4, 5
Affidavit of Naomi Levin, Esq., in Further Support of Respondent's Motion for Summary Judgment, with Exhibits, and Reply Memorandum of Law 6, 7
Notice of Motion for Summary Judgment by Petitioner David Yee, Affidavit of Jaclene D' Agostino, Esq., in Support, with Exhibits, and Memorandum of Law in Support 8,9,10
Affidavit of Naomi Levin, Esq., in Opposition to Motion, with Exhibits, and Memorandum of Law 11,12
Reply Affidavit of Jaclene D' Agostino, Esq., with Exhibits, and Reply Memorandum of Law in Further Support of Motion for Summary Judgment 13,14
At the call of the calendar on April 5, 2022, the court denied cross-motions for summary
judgment (CPLR 3212) in this contested turnover proceeding (SCPA 2103) in the estate of
Richard Chiang. The turnover proceeding was commenced by Co-Executor David Yee
[* 1] (Petitioner), who alleges that the $103,455.24 balance in decedent's JP Morgan Chase Bank
account (Account), which his cousin and Co-Executor Mary Ann S. Lee (Respondent) collected
after decedent's death, purportedly as joint tenant with right of survivorship, is estate property. 1
Background
Decedent died January 3, 2015, at the age of 85, survived by his wife Wei Lu, who post-
deceased in October 2016. Under his July 28, 2014 will, which was admitted to probate without
objection, decedent provided for his tangible personal property to be divided among his nieces
and nephews, including Petitioner and Respondent, and left his residuary estate to a trust he had
previously established. Petitioner and Respondent, as the nominated Co-Executors, received
Letters Testamentary in May 2016. After the dispute between the Co-Executors arose over the
estate's entitlement to the proceeds of the Account, the parties engaged in discovery and then
filed the instant cross-motions for summary judgment.
The parties offer sharply different narratives about the Account and decedent's intent
with respect to it, but there is no dispute that decedent, accompanied by Respondent, opened the
Account at Chase in April 2012, with an initial deposit of $103,613.94, none of which
Respondent contributed. Nonetheless, the signature card decedent and Respondent signed at the
time states that the Account's title is "Richard Chiang or Mary Ann S Lee" and refers to the
ownership type of the account as "Joint." The signature card also includes language indicating
that, by signing, decedent and Respondent: (1) acknowledged receipt of Chase's "Account Rules
and Regulations or other applicable account agreement" and (2) agreed "to be bound by the
terms and conditions contained therein." The Deposit Account Agreement, to which the
signature card referred, reads, in relevant part:
1Alternatively, Petitioner asks that, if the Account "is deemed a tenancy in common," Respondent should be directed to turn over half the proceeds from the account or $51,727.64.
[* 2] "a. Joint account with rights of survivorship
If a joint account has rights of survivorship, and one joint owner dies, the account will be paid to the surviving joint owners. The estate of the deceased owner will have no rights to the account.
*** "c. When survivorship rights apply
Except as otherwise stated in this paragraph, a joint account has rights of survivorship unless you clearly indicate on the signature card and in the account title that the account is created without these rights."
Chase mailed the Account's statements to decedent's address and only decedent's name
appears on the Account's checks. It is undisputed that the funds in the Account were used
exclusively to pay for the personal needs of decedent and his wife.
After decedent's death, the co-Executors filed the estate's Federal Estate Tax return (IRS
706) which listed the account as a "joint asset" with Respondent.
Discussion
At issue in these cross-motions is whether, as a matter of law, the Account can be
considered a joint account with rights of survivorship, in which case Respondent would be
entitled to its proceeds, or a convenience account, in which case its proceeds would be an estate
asset.
Summary judgment cannot be granted unless it clearly appears that no genuine triable
issues of fact exist (see Phillips v Kantor & Co., 31 NY2d 307 [1972]). The movant must make
a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence in admissible form, to demonstrate the absence of any material issue of fact (see
Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). If such a showing is made, the burden shifts to
the party opposing the motion to come forward with proof in admissible form sufficient to
[* 3] establish the existence of material issues of fact or provide an acceptable excuse for the failure to
do so (see Zuckerman v City of New York, 49 NY2d 557 (1980]). The party resisting summary
judgment is entitled to every favorable inference that can reasonably be drawn from the evidence
(see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]). Such evidence may
include hearsay "so long as it is not the only proof submitted" (see Bishop v Maurer, I 06 AD3d
622, 622 [1st Dept 2013 ]). In addition, evidence that might be barred at trial under CPLR 4519
(Dead Person's Statute) can be used to oppose summary judgment (see Phillips v Joseph Kantor
& Co., 31 NY2d at 315). It is clear, however, that "mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient" to raise an issue of fact (Zuckerman, 49
NY2d at 562).
To establish her prima facie case that the Account was a joint account with rights of
survivorship, Respondent relied on a copy of the signature card, the Deposit Account Agreement,
her deposition testimony describing her relationship with decedent viz-a-viz the Account, and the
Affidavit of decedent's long-time accountant Berge Avedisian which stated that decedent wanted
to give Respondent $100,000 for relocating from Hawaii to New York to help decedent. Based
on the signature card which included the statement that, by signing, decedent and Respondent
"acknowledge[d] receipt of the Bank's Account Rules and Regulations" and the statements in the
Deposit Account Agreement that joint owners have survivorship rights unless otherwise the
Account that Respondent adduced, the court concluded that Respondent had made a prima facie
case that she had survivorship rights to the Account (see Matter of Butta, 192 Misc 2d 614 [Sur
Ct, Bronx County 2002], affd 3 AD3d 347 [1st Dept 2004]; see also Sutton v Bank of New York,
250 AD2d 447 [1st Dept 1998]). 2
2 Respondent's deposition testimony concerning conversations she had with decedent regarding the establishment of the Account was not considered by the court in reaching this conclusion because 4
[* 4] The burden then shifted to Petitioner to raise a triable issue of fact. The court found that
Petitioner raised issues of fact in opposition to the motion, requiring a trial. Specifically,
Petitioner identified enough equivocal facts concerning the creation of the Account and the use
of its funds to raise a question concerning whether decedent intended to bestow on Respondent
an immediate right to the proceeds of the Account or wished only to establish a convenience
account. Accordingly, the court denied Respondent's motion for summary judgment.
As for Petitioner's motion for summary judgment, the court found that the same issues of
fact Petitioner raised in opposing Respondent's motion for summary judgment prevented his
motion from being granted.
This decision, together with the transcript of the April 5, 2022 proceedings, constitutes
the order of the court.
Date: May 20, 2024 suc::tTE
evidence excludable under the Dead Person's Statute cannot be used to support a grant of a summary judgment motion (see Phillips v Joseph Kantor & Co., 31 NY2d at 307). 5
[* 5]