RJM Acquisitions, LLC v Yong Hong

[*1] RJM Acquisitions, LLC v Yong Hong 2009 NY Slip Op 51185(U) [23 Misc 3d 1138(A)] Decided on April 27, 2009 Civil Court Of The City Of New York, Queens County Velasquez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 27, 2009
Civil Court of the City of New York, Queens County

RJM Acquisitions, LLC, Petitioner,

against

Yong Hong, Mee Sun Hong and JP Morgan Chase Bank, Respondents.



13839/09

Carmen R. Velasquez, J.

This is a special proceeding commenced by notice of petition, pursuant to CPLR 5225 (b) and 5227, for an order directing respondent, JP Morgan Chase Bank, to turnover to petitioner funds held by said respondent bank in a joint checking account in the names of Yong Hong and Mee Sun Hong in satisfaction of a judgment entered against respondent judgment debtor, Yong Hong, on April 10, 2008, in the sum of $3,031.06.

Notice of this proceeding has been served by substituted service, pursuant to CPLR 308(4), upon both the judgment debtor, Yong Hong, and Mee Sun Hong, the non debtor co-tenant of the joint checking account, and neither has appeared or answered.

Under Banking Law 675(b), there is a rebuttable statutory presumption of a joint tenancy in a joint bank account with each party entitled to equal shares of the account. In order to rebut this presumption there must be proof that the depositor opened the joint account for his convenience without the intention of conferring a beneficial interest on the other joint tenant. (See, In re Ricci, 13 AD3rd 663; Matter of Hayevesky v. Weinstein, 302 AD2d 524; Phelps v. Kramer, 102 AD2d 908; Phillips v. Philips, 70 AD2d 30; Russo v. Russo, 17 AD2d 129).

The petitioner, RJM Acquisitions, LLC., relies on a petition signed by its attorney and has not offered any evidence to rebut the statutory presumption that Mee Sun Hong, the co-tenant of the joint checking account involved in this turnover proceeding, is entitled to an equal share of the account. The failure of Mee Sun Hong to appear in the proceeding, without other evidence, is not sufficient to rebut the presumption, particularly since she was served by substituted service pursuant to CPLR 308(4), without any effort to obtain an alternate address at which she could have been personally served. Therefore, the turnover of funds in the joint checking account held by respondent bank is limited to one [*2]half of the proceeds in said account. (Velocity Investments, LLC v. Kawski, 21 Misc 3d 276; also see, Gurevitch v. Goodman, 269 AD2d 355).

Moreover, any turnover of funds is automatically subject to the exemption from collection of either $1,716.00 or, if the account receives any statutorily exempt electronic payment, such as Social Security, the increased amount of$2,500.00, in accordance with the New York Exempt Income Protection Act (EIPA), which become effective January 1, 2009.

Accordingly, as the amount exempt from collection herein exceeds the proceeds of the joint checking account that is subject to turnover to satisfy the judgment against respondent judgment debtor, Yong Hong, the petition is dismissed.

This shall constitute the decision and order of the Court.

Date: April 27, 2009._________________________________

Hon. Carmen R. Velasquez

Judge, Civil Court