The decedent, Dolores E. Royce, died on September 7, 2008. She was survived by two daughters, Kyle R. Larson, the Petitioner in this matter, and Tracey D. Stoever, the preliminary executrix of the decedent's estate and the Respondent in this matter. On December 16, 2010, the conformed copy of the decedent's will, dated February 8, 2004, was offered for probate. The will provided for a bequest of $2,000 to each of the decedent's grandchildren then living and divided her residuary estate by leaving one-third to her daughter Kyle R. Lawson and two-thirds to her daughter Tracey D. Stoever.

In its pleadings, the Petitioner alleges that prior to her death, the decedent allegedly opened an account at First Union Bank with initial deposits totaling $123,084.81. The Petitioner further alleges that she was listed as a joint tenant on the account for convenience only. On November 1, 1999 the Petitioner alleges that the decedent deposited $172,943 of her own funds into that account, which funds represented approximately one-half of the proceeds of the sale of her former home in Glen Cove, New York. Allegedly, shortly after this deposit, the Petitioner and her husband moved to Philadelphia, Pennsylvania, and the decedent moved with them. The Petitioner alleges that the decedent also had approximately $89,000 in other funds which were deposited in other savings accounts in the decedent's name.

The Petitioner further alleges that in August of the year 2000, the decedent moved to [*2]Rochester with her daughter Tracey D. Stoever and her daughter's husband. Shortly after that, the Decedent allegedly opened a checking account at M & T Bank, with an initial deposit of $3,000 of her own funds. The Petitioner alleges that Tracey Stoever was listed on the account as a joint tenant, but for convenience of the decedent. The Petitioner alleges that the decedent opened another account with an initial deposit of $329,360.35 of her own funds. Again, the Petitioner alleges that Tracey Stoever was listed as a joint tenant on the account but alleges that it was titled so for the decedent's convenience. The decedent's total cash assets, were allegedly in excess of $420,000 in the summer of 2000.

The Petitioner alleges that beginning in late 2003 and early 2004, as the decedent's health declined, Trace Stoever began to exercise increasing control over the decedent's finances. On or about March 2004 and continuing through August, 2008, Trace Stoever allegedly made withdrawals from the decedent's accounts and used them for her own purposes.

The Petitioner filed a petition for Advice and Directions on July 20, 2012. The Respondent filed a Verified Answer on September 10, 2012. The Petitioner filed a Notice of Motion for Summary Judgment on October 26, 2012, along with a Memorandum of Law. On November 30, 2012, the Respondent also filed affidavits with exhibits from Tracey Stoever, Eric Stoever and Marie F. Locke. Eugene M. O'Connor, Esq., filed an Attorney Affirmation on November 30, 2012 along with a Memorandum of Law. A reply Memorandum of Law and Affirmation was received from Michael A. Burger, Esq., on January 14, 2013. An Affirmation in Opposition to the Motion for Summary Judgment was filed by the Respondent on February 6, 2013.

The Respondent alleges that the accounts opened by the decedent with Ms. Tracey D. Stoever as joint tenant were not convenience accounts. The Respondent further alleges that the decedent directed, authorized and approved the transfer of funds from her joint accounts to be used for the benefit of Tracey D. Stoever and her husband. For the foregoing reasons, the Court denies the Petitioner's motion for summary judgment.

A motion for summary judgment can be granted only when there is no doubt as to the absence of triable issues. Rotuba Extruder, Inc. v. Ceppos, 46 NY2d 223 (1978); Andre v. Pomeroy, 35 NY2d 361 (1974). In making its motion, the Petitioner must present sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing pleadings. Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985). Based on the Petitioner's motion, the Court finds that the Petitioner has not met its burden in this matter.

Banking Law §675(a) provides, in relevant part that: "When a deposit of cash...has been made...in or with any banking organization...transacting business in this state...in the name of such depositor...and another person and in form to be paid or delivered to either, or the survivor of them, such deposit...and any additions thereto made, by either of such persons, after the making thereof, shall become the property of such persons as joint tenants and the same, [*3]together with all additions and accruals thereon, shall be held for the exclusive use of the persons so named, and may be paid or delivered to either during the lifetime of both or to the survivor after the death of one of them..."

Banking Law §675(b) provides that: "The making of such deposit or the issuance of such shares in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding to which the banking organization , foreign banking corporation, surviving depositor or shareholder is a party, of the intention of both depositors or shareholders to create a joint tenancy and to vest title to such deposit or shares, and additions and accruals thereon, in such survivor. The burden of proof in refuting such prima facie evidence is upon the party or parties challenging the title of the survivor."

Accordingly, the joint accounts opened by the decedent with Tracey Stoever as a joint account holder would pass outside of probate and go to her by operation of law. It is incumbent upon the Petitioner to allege sufficient facts in its pleadings to prove fraud or undue influence on the part of Tracey Stoever. ThePetitioner' pleadings allege that a confidential relationship existed between the decedent and Tracey Stoever as parent and child. However, to prevail as a matter of law, the Petitioner must prove the existence of other factors, in addition to the relationship,that show that undue influence was exercised. See Matter of Putnam, 257 NY 140, (1931). For instance, evidence regarding the health of the decedent during the time these joint accounts existed would be very relevant in such an inquiry. Based on the submissions from both parties, it remains an open question as to whether or not undue influence was exercised by Tracey Stoever over the decedent. The Court cannot state as a matter of law that undue influence was exercised over the decedent relative to the transactions which allegedly occurred relative to the bank accounts in question.

Also, the Petitioner has not presented sufficient proof that there are not any material issues of fact relative to her claims that the accounts were convenience accounts or joint accounts. It is not clear to the Court, based on the pleadings thus far submitted, that the accounts were convenience accounts. The Respondent's pleadings have controverted the Petitioner's allegations regarding this issue. A hearing is required in this matter in order for the Court to determine whether or not they were convenience accounts or joint accounts. The Court, after hearing the proof and determining the credibility of the witnesses, and considering all of the evidence would then be in a position to determine the nature of these accounts.

Hon. Edmund A. Calvaruso, Surrogate