Rametta v. Kazlo

• Decision Date: 02 July 1979
• Citation: 418 N.Y.S.2d 113,68 A.D.2d 579
• Parties: Salvador J. RAMETTA, Appellant, v. Dolores C. Rametta KAZLO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 113

418 N.Y.S.2d 113

68 A.D.2d 579

Salvador J. RAMETTA, Appellant, v. Dolores C. Rametta KAZLO, Respondent.

Supreme Court, Appellate Division, Second Department.

July 2, 1979.

Philip V. Manning, Malverne (James F. Ryan, Brooklyn, of counsel), for appellant.

Bracken & Jacoppi, East Setauket (John P. Bracken, East Setauket, of counsel), for respondent.

Before SUOZZI, J. P., and LAZER, GULOTTA, SHAPIRO and COHALAN, JJ.

PER CURIAM.

In this action to set aside a deed and to recover damages based upon the conversion of two bank accounts, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County, which, after a nonjury trial, denied the relief sought and dismissed the complaint. The judgment should be affirmed.

Plaintiff is the father of defendant. The real property involved in the dispute is located in Lake Ronkonkoma, New York. The defendant has lived in the house on the property since 1953. The defendant's parents came to the house every weekend and also spent their vacations there. It was purchased by the defendant and her first husband with a down payment supplied by the plaintiff and his wife, Charlotte. Her father paid a substantial amount of the mortgage. However, she expended greater sums by way of improvements to the house. Record title to the house has shifted over the years since the defendant and her first husband purchased it. In 1956 the defendant's first husband deeded his interest to his wife. In 1959 the defendant deeded her interest to the plaintiff and his wife, her mother. There was testimony by the defendant that this was done on the advice of plaintiff, an attorney, to protect the property from falling back into the hands of her husband, at a time when she was experiencing marital difficulties. In 1960 two deeds were prepared with respect to the premises. One ran from the plaintiff and his wife to the wife alone. This was eventually recorded in 1968. The other ran from the plaintiff and his wife to the plaintiff alone and was never recorded. The defendant testified that the first deed was recorded in 1968 because her father was ill and feared he would predecease his wife. In fact, she predeceased him in 1973. Then, the plaintiff executed a deed, as executor and sole legatee of his wife's estate, to the defendant on September 4, 1974. This deed was not recorded until July 12, 1976.

There was conflicting testimony on the issue of of delivery of the 1974 deed. The plaintiff claimed he kept it in a "strongbox" and that his daughter took it from there. The defendant claimed that her father delivered it to her right after it was acknowledged. The trial court found that plaintiff failed to prove nondelivery by a preponderance of the credible evidence. The defendant was aided by the presumption of delivery arising from recordation (see Sweetland v. Buell, 164 N.Y. 541, 552, 58 N.E. 663, 666). In addition, she had direct testimony concerning delivery. Where the evidence presented to rebut a presumption raises an issue of credibility, it is for the trier of fact to determine whether the presumption has been defeated (Richardson, Evidence (Prince, 10th ed), § 58). This court should not disturb the finding of the trier of fact based on a weighing of credibility, absent a clear indication that the defendant's testimony was incredible as a matter of law.

The suit also sought damages for the conversion of two Totten trust accounts. It is undisputed that the two accounts were created from the plaintiff's funds obtained after the sale of his home in Brooklyn. The accounts were in the name of "Dolores C. Rametta, in trust for Salvador J. Rametta Power of Attorney Salvador J. Rametta". In order to sustain the gift of this money to the defendant, the court must find the existence of a donative intent, delivery, and acceptance by the donee. (See Matter of Szabo, 10 N.Y.2d 94, 98, 217 N.Y.S.2d 593, 595, 176 N.E.2d 395, 396; Matter of Van Alstyne, 207 N.Y. 298, 306, 100 N.E. 802, 804.) A donative intent may be inferred from the act of placing funds in the name of the donee, in what was then a close family situation. The plaintiff had previously given the defendant fur coats and substantial sums of money. Unconditional delivery may be established by placing the money in a Totten trust in the name of the donee. (This act constituted a change in dominion and control of the money (see Matter of Szabo, supra, 10 N.Y.2d p. 98, 217 N.Y.S.2d p. 595, 176 N.E.2d p. 396).) It is well settled that such an account vests no interest in the beneficiary and the owner of the account is free to dispose of those funds in any manner. (Matter of Totten, 179 N.Y. 112, 71 N.E. 748.) The reservation of a power of attorney by the beneficiary does not demonstrate a different intent, since such power does not allow the agent to benefit himself. (Matter of Lalor, 28 A.D.2d 66, 281 N.Y.S.2d 614.) Finally, acceptance of the gift is clearly demonstrated by the fact that the donee declared the interest from these accounts on her income tax returns. Accordingly, the judgment of the trial court should be affirmed.

LAZER, GULOTTA and SHAPIRO, JJ., concur.

SUOZZI, J. P., and COHALAN, J. (dissenting).

We dissent and vote to reverse the judgment and grant a new trial on the causes of action pleaded in the complaint.

With respect to the cause of action to void a deed of record, it was plaintiff's testimony that he executed and acknowledged a deed to the defendant dated September 4, 1974. The deed was not delivered to defendant at that time, but was placed in...