Sherman v. Georgopoulos

84 A.D.2d 811, 444 N.Y.S.2d 136, 1981 N.Y. App. Div. LEXIS 16023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1981
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud, misrepresentation, conversion, and moneys had and received, defendant appeals from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), entered December 9, 1980, which, after a nonjury trial, awarded the plaintiff the principal sum of $27,200. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No findings of fact have been considered. The instant action concerns a dispute as to funds which had been deposited in a joint bank account in the name of the parties. Since the plaintiff sought to rebut the presumption that the joint bank account created a joint tenancy as to the funds deposited (see Banking Law, §675; Matter of Kleinberg v Heller, 38 NY2d 836), the burden was upon her to introduce “direct proof to rebut the presumption that a valid joint tenancy had been intended and created [and/or] * * * substantial circumstantial proof sufficient to support an inference that the joint account had been opened for convenience only” (see Matter of Murphy, 23 AD2d 866, 867). Inasmuch as the trial court erroneously assigned the burden of proof to the defendant, a new trial is required. Hopkins, J. P., Mangano, Rabin and Cohalan, JJ., concur.