In re Harley

— Order unanimously affirmed without costs. Memorandum: The Surrogate properly denied respondent’s motion for summary judgment. The presumption that bank accounts in the names of respondent and decedent constituted joint tenancies with a right of survivorship may be rebutted (Banking Law § 675) only by a clear and convincing showing that, at the time the accounts were created, the accounts were opened as a matter of convenience, or by proving undue influence, fraud or lack of capacity (see, Brezinski v Brezinski, 94 AD2d 969 ; Matter of Camarda, 63 AD2d 837 , 838). The proof submitted by petitioner in opposition to respondent’s motion was sufficient to raise a question of fact whether decedent lacked the requisite mental capacity at the time that the accounts were created. (Appeal from Order of Erie County Surrogate’s Court, Mattina, S.— Summary Judgment.) Present — Callahan, J. P., Green, Pine, Boehm and Doerr, JJ.