Matter of Dubin

[*1] Matter of Dubin 2008 NY Slip Op 52652(U) [22 Misc 3d 1118(A)] Decided on December 16, 2008 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 18, 2009; it will not be published in the printed Official Reports.

Decided on December 16, 2008
Sur Ct, Nassau County

In the Matter of the Estate of Sylvia Dubin, Deceased.



335732



Respondent

Proskauer Rose

1585 Broadway, Suite 1976

New York, New York 10036

Petitioner

Novick & Associates

202 East Main Street

Huntington, New York11743

John B. Riordan, J.

In this proceeding to enforce a claim against the estate, the estate moves for summary judgment dismissing the petition. The petitioner cross-moves for partial summary judgment.

The facts are uncontroverted. The decedent, Sylvia Dubin, died on November 3, 2004. Petitioner and decedent owned treasury notes in a United States Treasury Direct account. The account was titled "Sylvia Dubin or Joan B. Levine, DDS." The account payments were routed to an account at Fleet Bank held by the decedent. On August 6, 1993, the value of the account was $200,000.00; on February 7, 1997, the value of the account was $200,000.00; on April 3, 1998, the value of the account was $30,000.00; on April 4, 2003, the value of the account was $20,000.00; on March 31, 2005, the sum of $10,338.10 was transferred from the account to decedent's Fleet Bank account; and, on September 30, 2005, the sum of $10,338.70 was transferred from the account to the decedent's Fleet Bank account. All withdrawals were made by the decedent.

Petitioner, Joan B. Levine, asserts that she is entitled to one-half (½) of the proceeds of the account, $100,000.00, claiming that as a result of the decedent's withdrawals from the account, petitoner's moiety in the account was destroyed. A claim was made against the estate for $100,000.00 dated February 25, 2008.

The estate has moved for summary judgment dismissing the petition asserting that the account is a co-ownership account governed exclusively by federal regulation and no joint account ever existed. The estate further asserts that the petitioner's claim is time-barred.

Petitioner opposes the motion asserting that the account has the character of a tenancy in common and petitioner is entitled to a moiety interest in the account and that the estate is liable [*2]for decedent's withdrawal of the excess of the moiety. Petitioner states that the claim is not time barred as it "also sounds in fraud as [petitioner] was defrauded by the destruction of the moiety." Further, petitioner cross moves for partial summary judgment for the monies remaining in the account.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].

The applicable treasury regulation, 31 C.F.R. §357.21(b)(2)(B)(ii) provides:

(ii) "Or" form-"Coownership". In the names of the two individuals, joined by the word "or". A security so registered shall confer on each owner an undivided interest in the security and shall create a conclusive right of survivorship.

Example:Robert Woods or Laura Woods.

If a security is registered in this form, either co-owner may make a transaction request, but if the Department receives conflicting requests at or about the same time, it may refuse to process them.

Under federal law, this registration option, which is but one of the eight distinct common registration options, authorizes either co-owner to make transactions without the consent of the other (see, e.g., Matter of Pernia, l165 B.R. 581 [Bankr. D. Md. 1994]); Merlini v Department of Public Welfare, 931 AD2d 768 [PA. Common Ct 4372007], [either co-owner may make a transaction report without the consent of the other and without any objection to the co-owner]). While the principle espoused in these cases is antithetical to substantive New York Law covering tenancies in common (See Matter of Bricker v Krimer, 13 NY2d 22, 27 [1963]; Commrade v Commrade, 29 AD2d 871 [2d Dept 1968]; Abramowitz v. Bernstein, 100 Misc 2d 940 [Sup Ct, Kings County 1979]), the registration and ownership of treasury direct accounts are governed exclusively by federal treasury regulations (United State v Chandler, 410 US 257 [1973]; Free v Bland, 369 US 663 [1962], [all laws and court decisions in conflict with the treasury regulations are preempted]). Petitioner, therefore, did not have any moiety interest in the account.

Petitioner's reliance upon Matter of Goldfarb, NYLJ, Jan 31, 1991 [Sur Ct, New York County] is misplaced. There, three treasury bills and a New York State bond were purchased from proceeds of a tenant in common bank account. The court applied New York law, not federal law, and determined that to the extent a tenant in common withdrew more than the moiety interest to purchase the treasury bills to be registered in his name alone, the other tenant was entitled to recover her moiety interest in the accounts.

Even assuming that the petitioner did have a moiety interest in the account, her claim is time barred. The claim sounds in conversion and is, therefore, governed by a three year statute of [*3]limitations (CPLR 214 [3]). The three year period runs from the date of the conversion and not from the discovery or the exercise of diligence to discover (Sporn v MCA Records, Inc.,

58 NY2d 482 [1983]; Turecamo v. Turecamo, 2008 NY Slip Op 8174 [1st Dept 2008];

Barrett v Huff, 6 AD3d 1164 [4th Dept 2004]). Under such circumstances, petitioner's claim to a moiety interest is time barred. Petitioner's assertion that her claim is timely as it sounds in fraud is without merit as no such fraud claim was pleaded.

Accordingly, the estate's motion for summary judgment dismissing the petition is granted. Petitioner failed to establish that the motion should be denied pending discovery. "Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (CPLR 3212 [a]), a determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Lambert v Bracco, 18 AD3d 619 [2d Dept. 2005][citation omitted]. No such evidentiary basis has been demonstrated by petitioner.

Petitioner's cross-motion for partial summary judgment is being held in abeyance as counsel have advised the court that a settlement is imminent on that issue.

The above constitutes the decision and order of this court.

Dated: December 16, 2008

JOHN B. RIORDAN

Judge of the

Surrogate's Court