Cinquemani v. Cinquemani

• Decision Date: 13 August 1973
• Citation: 42 A.D.2d 851,346 N.Y.S.2d 875
• Parties: Jeanne CINQUEMANI, Plaintiff-Appellant, v. Guiliano CINQUEMANI, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 875

346 N.Y.S.2d 875

42 A.D.2d 851

Jeanne CINQUEMANI, Plaintiff-Appellant, v. Guiliano CINQUEMANI, Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

Aug. 13, 1973.

Before HOPKINS, Acting P.J., and LATHAM, CHRIST, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce founded upon cruel and inhuman treatment, plaintiff appeals from an order-judgment of the Supreme Court, Nassau County, dated January 16, 1973, which (1) dismissed her complaint at the conclusion of plaintiff's proof; (2) denied her a divorce; (3) denied her request for additional counsel fees and (4) directed her to return to defendant the sum of $6,898.81, wrongfully converted by her from two savings certificates in joint names and further directed her to personally pay interest thereon from the time of wrongful conversion.

Order-judgment modified, on the law and the facts and in the interest of justice by striking therefrom the first, second and third decretal paragraphs, which dismissed plaintiff's complaint, denied her relief for divorce and denied additional counsel fees; substituting therefor a decretal paragraph as follows: 'ORDERED, ADJUDGED and DECREED that the plaintiff, Jeanne Cinquemani, is granted Judgment of Divorce against defendant, Guiliano Cinquemani'; and remitting the matter to the Special Term, Part V, for further determination on the issues of alimony, custody of and support for the minor issue of the parties and additional counsel fees. As so modified, order-judgment affirmed, wtihout costs.

In our opinion, the evidence adduced at the trial herein competently established a course of conduct by defendant directed against plaintiff, which endangered her physical and mental well-being and rendered it unsafe and improper for plaintiff to cohabit with defendant (Domestic Relations Law, § 170, subd. 1).

The situation in the case at bar presents more than mere incompatibility (Middleton v. Middleton, 35 A.D.2d 371, 316 N.Y.S.2d 583) or occasional marital discord (Rios v. Rios, 34 A.D.2d 325, 311 N.Y.S.2d 664, affd. 29 N.Y.2d 840, 327 N.Y.S.2d 853, 277 N.E.2d 786). It evidences facts which clearly point to matrimonial demise (Berlin v. Berlin, 64 Misc.2d 352, 314 N.Y.S.2d 911, modified on other grounds, 36 A.D.2d 763, 321 N.Y.S.2d 511, motion for leave to appeal to Court of Appeals dismissed, 28 N.Y.2d 986, 323 N.Y.S.2d 840, 272 N.E.2d 339).

There was evidence that defendant struck plaintiff on several occasions, causing her personal injury. As a result of his actions towards her, plaintiff has been under a doctor's care for hypertension. She suffers from headaches, blackouts, dizzy spells and palpitation and has been taking tranquilizers.

In addition, there is uncontradicted proof of false accusations of infidelity made by defendant to plaintiff, without a showing of reasonable grounds for belief in the accusation. Such statements constitute cruel and inhuman treatment sufficient to warrant the granting of a divorce (Mante v. Mante, 34 A.D.2d 134, 136--137, 309 N.Y.S.2d 944, 946; Lowe v. Lowe, 67 Misc.2d 271, 273, 324 N.Y.S.2d 229, 231, affd. 37 A.D.2d 525, 322 N.Y.S.2d 975).

Plaintiff established a Prima facie case for divorce founded upon cruel and inhuman treatment. Under such circumstances, and in the absence of an affirmative defense of adultery, relief should have been granted to her (Woicik v. Woicik, 66 Misc.2d 357, 321 N.Y.S.2d 5).

The other contention of plaintiff is that the trial court erred in directing her to turn over to defendant the entire proceeds of the savings certificates, which she cashed in and placed in trust for the two minor children of the parties.

We do not believe this determination to have been erroneous. The uncontradicted evidence of the parties reveals that the funds for the certificates came from defendant's pension plan; plaintiff did not contribute any money towards their purchase; defendant placed the certificates in joint names for convenience and emergency purposes and he did not authorize plaintiff to cash them in.

Section 675 (subd. (b)) of the Banking Law creates a rebutable presumption when a joint account is created that the funds therein belong to those in whose names the account was made. This holds true even when withdrawals are made prior to the death of one of the depositors (Matter of Bricker (Krimer), 13 N.Y.2d 22, 27, 241 N.Y.S.2d 413, 416, 191 N.E.2d 795, 797). Accordingly, where, as in the case at bar, the joint account was created as a matter of convenience and not with the intention of conferring a beneficial interest upon plaintiff, the presumption was effectively rebutted (Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783; Herwick v. Stiehl, 68 Misc.2d 850, 328 N.Y.S.2d 285).

Accordingly, the case is remitted to the Special Term for proceedings not inconsistent with this...