Citibank (South Dakota), N.A. v Five Star Bank

[*1] Citibank (S.D.), N.A. v Five Star Bank 2006 NY Slip Op 51356(U) [12 Misc 3d 1181(A)] Decided on July 10, 2006 Supreme Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 25, 2006; it will not be published in the printed Official Reports.

Decided on July 10, 2006
Supreme Court, Yates County

Citibank (S.D.), N.A., Petitioner (Judgment-Creditor)

against

Five Star Bank and THOMAS A. BARTUSIAK, Respondents-Garnishees, and BETTY J. BARTUSIAK, Judgment-Debtor



2006-161



APPEARANCES:

Forster & Garbus

(Edward J. Damsky, Esq., of Counsel)

Counsel for Petitioner

Thomas A. Bartusiak

Respondent-Garnishee

Pro Se

Betty J. Bartusiak

Judgment-Debtor

Pro Se

W. Patrick Falvey, J.

This is a post-judgment enforcement proceeding. Petitioner Judgment-Creditor, Citibank, seeks funds in two joint bank accounts held by judgment debtor, Betty Bartusiak and her husband, respondent Thomas Bartusiak, at Five Star Bank. Citibank entered and docketed a money judgment in the amount of $22,395.83 against Mrs. Bartusiak on January 31, 2006.

Respondents Bartusiak, pro se, oppose the application, and Mrs. Bartusiak, in her response affidavit avers that there is "exempt" monies in the accounts, to wit: funds from Mr. Bartusiak's Individual Retirement Account. She also states that she has made weekly payments to the Yates County Sheriff's Office towards the judgment pursuant to an income execution.

The Court held a hearing on June 13, 2006, on the issue of whether the respondents could overcome the presumption that each owner of a joint bank account is entitled to an equal share, and thus, one-half of the funds would be available to the petitioner to enforce its judgment against Mrs. Bartusiak. See Palisades Acquisition v Ibrahim, 12 Misc 3d 340 Civil Court, NYC, citing Sicari v First Fidelity Bank, 246 AD2d 877; Banking Law §675.

At the beginning of the hearing, the parties stipulated that petitioner has a money judgment in the amount of $22,395.83, entered on January 31, 2006, against Mrs. Bartusiak; that respondent Five Star Bank was served with an information subpoena and restraining notice on February 8, 2006, and the total balance in the two joint accounts on that date was $6941.98.

It was further stipulated that as of February 28, 2006, $6870.88 was the savings account balance and $1077.75 was the checking account balance for a total of $7,948.63. Finally, it was stipulated that as of January 30, 2006, the savings account balance totaled $7280.88 and the [*2]checking account totaled $736.53, for a total of $8017.41.

Also, during trial the 401K retirement statement and bank records were marked by the respondents but were not offered into evidence. Therefore, the Court must base its decision on the testimony only.

Both Bartusiaks were sworn and Mrs. Bartusiak testified that her husband withdrew $41,111.25 from his 401K in November, 2005, and deposited this money into the joint savings account on November 4, 2005. The balance in the savings account just prior to this deposit was $191.76. The gross distribution of retirement funds was $57,000, $15,888.75 of which was withheld, that is, $11,400 for Federal Income Tax and $4,488.75 for State Income Tax, leaving a balance of $41,111.25.

The parties then withdrew various sums to pay bills including $2284 in 11/05; $15,000 in 12/05; $2,000 on 12/14/05; $11,000 on 12/27/05; $3900 on 1/20/06 and $395 on 2/13/06.

The source of all of these withdrawals was not necessarily just the exempt 401K funds, because the parties made other deposits in both accounts during this period and interest was also credited on December 31, 2005 in the amount of $26.87, and on April 2, 2006 in the amount of $10.02.

Mrs. Bartusiak also testified that she and her husband are employed, and their pay checks are automatically deposited into the two accounts, that is, each week the husband's pay check of $476.72 is split, so that $300 of it is deposited into savings, and the remainder is deposited into checking; while all of the wife's pay check is deposited into the checking account, and then $60 of this is transferred into the savings account.

On cross examination, the wife admitted that the respondents did not have a copies of the 401K check or the deposit slip showing this money was in fact deposited into the joint savings account.

Mr. Bartusiak testified that the 401K money was used to pay creditors.

The crucial date here is the date the restraining notice was served, to wit: February 8, 2006. The total in both accounts on that day was $6941.98.

Based on the proof presented, the Court finds that $41,111.25 was deposited into the parties' joint savings account on November 4, 2005 which had a balance of $191.76 on November 3, 2005. The source of the savings account funds, except for the $191.76, was the husband's 401K account, being "exempt" separate property.

However, respondents have failed to prove what amount of the balance in the savings account on February 8, 2006 can be traced to the exempt funds, since, deposits over some thirteen and a half weeks (11/4/05 - 2/8/06) were made to both accounts from both of the respondents' pay checks, and respondents failed to show the total of these deposits, especially those of the wife. Instead she only testified to the $60 per week transferred from checking to savings; without stating what amounts were deposited to either or both accounts from her pay check. Further, the testimony showed that the parties treated all the monies in these two joint accounts as joint commingled funds, they each deposited all of their pay checks into one or the other or both accounts. They used the funds to pay bills. They offered no proof as to which bills were joint, and which belonged to one or the other of them. Therefore, they have not rebutted the presumption of one half ownership.

The petitioner is therefore entitled to $3,470.99, which is one half of the $6941.98 balance remaining in both accounts on February 8, 2006.

The foregoing constitutes the Opinion and Decision of this Court. Petitioner to submit Order in accordance therewith.

Dated: July _____, 2006.

________________________________

W. Patrick Falvey

Acting Justice Supreme Court

Yates County [*3]