Brezinski v. Brezinski

• Decision Date: 29 January 1982
• Citation: 446 N.Y.S.2d 833,84 A.D.2d 464
• Parties: Anna BREZINSKI, Appellant, v. Stella BREZINSKI and Donald Brezinski, Individually and Stella Brezinski, Donald Brezinski and Ronald Brezinski, as Distributees of the Estate of Henry Brezinski, Deceased, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 833

446 N.Y.S.2d 833

84 A.D.2d 464

Anna BREZINSKI, Appellant, v. Stella BREZINSKI and Donald Brezinski, Individually and Stella Brezinski, Donald Brezinski and Ronald Brezinski, as Distributees of the Estate of Henry Brezinski, Deceased Respondents.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1982.

Anthony F. Shaheen, Utica, for appellant; Kenneth Ray, Utica, of counsel.

Dominic J. Zito, Frankfort, for respondents.

Before DILLON, P. J., and SIMONS, HANCOCK, MOULE and SCHNEPP, JJ.

HANCOCK, Justice.

We hold that in an action against representatives of a deceased tenant of joint savings accounts (see Banking Law, § 675), CPLR 4519 does not bar the surviving tenant from testifying concerning her intent in establishing the accounts so long as her testimony relates to the fact of that intent and not to any communications or transactions with the deceased tenant.

Plaintiff has sued her daughter-in-law and two grandsons to recover the entire proceeds of certain joint savings accounts which she had maintained with her son, Henry, for several years prior to his death. A few weeks before he died, Henry withdrew the entire proceeds from the accounts and transferred the funds to three new joint accounts: one in his own name jointly with his wife, Stella, and one such account with each of his two sons, Donald and Ronald. The defendants are Stella, Donald and Ronald, in whom the proceeds of the three accounts vested as surviving tenants upon Henry's death. From a judgment after a trial without a jury awarding her one-half of the accounts as a joint tenant under Banking Law (§ 675), plaintiff appeals.

At trial, plaintiff, an 86-year-old woman, established that the funds in the accounts consisted solely of money that she had deposited from her earnings. Her son Henry made no contributions. The bankbooks were continuously in plaintiff's possession except when Henry had them for the purpose of doing banking transactions for her.

Plaintiff's complaint alleges that she maintained the accounts with her son solely for her own convenience; and she sought to establish this fact at trial by testifying concerning her intention at the time of the initial transactions with the banks when she opened the joint accounts. The court precluded such testimony as barred by CPLR 4519. It also sustained objections under CPLR 4519 to testimony pertaining to the bank accounts by Stella, Ronald and Donald, all of whom were called as witnesses by plaintiff. With the proof thus curtailed, the court held that plaintiff had not overcome the presumption that in opening the accounts plaintiff had intended to create a joint tenancy with her son (Banking Law § 675, subd. see Matter of Camarda, 63 A.D.2d 837, 406 N.Y.S.2d 193, Matter of Coddington, 56 A.D.2d 697, 391 N.Y.S.2d 760).

At trial the court made a categorical ruling prohibiting testimony of any nature pertaining to plaintiff's intent in opening the bank accounts and refused plaintiff's attorney's request for permission to place on the record through an offer of proof what plaintiff's testimony would be if she were allowed to testify. The record, therefore, contains no information as to the precise content or purport of the excluded evidence. In her brief on appeal, however, plaintiff asserts that if she had been permitted to do so she would have testified in substance that: "I went to the bank alone and put Henry's name on the accounts, I didn't discuss this with him, I did this solely so I could have him do my banking business for me in the future because I couldn't drive and I lived a good distance from the banks." It is claimed that the precluded testimony would have related solely to plaintiff's intent as a state of mind, an ultimate fact which was independent of and unrelated to any transaction or communication with the deceased or any conduct or language on his part.

The court's blanket prohibition of the proffered testimony was error. It is settled that intent as a state of mind is a fact which may be proved when it is material (see O'Marr v. McLean, 228 App.Div. 19, 21, 238 N.Y.S. 443). In Epstein v. Cuba, 25 A.D.2d 680, 268 N.Y.S.2d 947, the court held that the defendants should have been permitted to testify as to their intent in creating joint savings accounts stating ( Epstein v. Cuba, supra, pp. 680-681, 268 N.Y.S.2d 947): "While defendants' obvious interest may diminish the credit to be given their testimony, nevertheless it has long been the rule of this State that, whenever the intent or motive of a witness is a material issue in a cause, his testimony as to what that intent or motive was, while not conclusive, is competent and that it is reversible error to exclude it (People v. Levan, 295 N.Y. 26, 64 N.E.2d 341; Noonan v. Luther, 206 N.Y. 105, 99 N.E. 178; Richardson, Evidence § 384, subd. L; 2 Wigmore, Evidence § 581)." While it would have been error to have permitted plaintiff to establish her mental attitude "by proving as a basis for it a personal transaction or communication barred by (O'Marr v. McLean, supra, 228 App.Div. pp. 21-22, 238 N.Y.S. 443), she should have been permitted to testify to the ultimate fact of her intent provided it appeared from her testimony that such fact was not derived from or dependent upon any conversation, transaction or communication with the deceased.

Contrary to the view expressed in the trial court's decision and adopted by the dissent, plaintiff does not seek to "do indirectly what she could not do directly" as in Clift v. Moses, 112 N.Y. 426, 20 N.E. 392. There the ultimate fact sought to be established was a transaction with the deceased which was barred; i.e., that the deceased had delivered the notes to defendant upon payment. Defendant sought to prove this transaction indirectly by testifying not that the decedent had given him the cancelled notes which, he claimed, had been...