Sherman v. Georgopoulos

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.