Haynes v. Toma

—In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Blydenburgh, J.), dated May 22, 2002, as, after a nonjury trial, found that a $40,000 advance from the plaintiffs father was marital property, and distributed to the defendant 50% of a Lehman Brothers account, or $7,438.

Ordered that the judgment is modified by deleting the provision thereof distributing 50% of the Lehman Brothers account; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff contends that the Supreme Court erred in finding that a $40,000 advance from the plaintiffs father for a down payment on the marital residence was a gift to both parties. The plaintiff asserts that the money was a loan to him alone. However, the defendant failed to meet his burden of proving that the $40,000 was separate property, and the Supreme Court properly found it to be marital property subject to equitable distribution (see Fuegel v Fuegel, 271 AD2d 404 ; Pauk v Pauk, 232 AD2d 386 ; Strang v Strang, 222 AD2d 975 ; Icart v Icart, 186 AD2d 918 ; Ackley v Ackley, 100 AD2d 153 ).

Based upon the concession by counsel for the defendant, the Supreme Court improperly distributed the Lehman Brothers