Defendants reliance on these cases are misplaced because these cases are easily distinguishable. Both cases deal with the issue of whether the personal property in question was in actuality the judgment-debtor's. See Claymont, 528 N.Y.S.2d at 645 (restraining notice directed at artwork where the ownership of same was at issue); H.J. O'Connell Assocs., Ltd., 381 N.Y.S.2d at 660 (restraining notice directed at a bank account not held by the judgment-debtor). When the facts of a case give rise to the issue of who owns the personal property in question, then the correct analysis would be to inquire into whether the judgment-debtor had an actual and direct interest in the property. See Claymont, 528 N.Y.S.2d at 645; H.J. O'Connell Assocs., Ltd., 381 N.Y.S.2d at 660. But if ownership is not in dispute, then such analysis would not be required.
In the case at bar, the checking account in question is held in Richard E. Koffman's name and in his name alone. The ownership of this account can not be disputed. Therefore, the cases cited by defendants have no application here. Accordingly, the defendants have failed to demonstrate to the court a sound legal basis in which to grant their instant motion as to BSB account number 360735302.
B. BSB Account Numbers 360985774, 324088087, and 310035456
As for defendants' joint accounts, the law is clear in that "so long as both tenants are living, each has a 'present unconditional property interest in an undivided one half of the monies deposited.'" Brezinski v. Brezinski, 94 A.D.2d 969, 463 N.Y.S.2d 975, 976 (4th Dep't 1983) (quoting Matter of Kleinberg v. Heller, 38 N.Y.2d 836, 841, 382 N.Y.S.2d 49, 345 N.E.2d 592 (1976)). Such presumption of joint tenancy may be rebutted only if "direct proof or substantial circumstantial proof, clear and convincing and sufficient to support an inference that the joint account had been opened in that form as a matter of convenience." Brezinski, 463 N.Y.S.2d at 976.
Defendants have acquiesced that the FDIC is entitled to one-half of the funds deposited in their joint accounts at BSB. Thus, defendants are ordered to turnover to the FDIC one-half of all the funds on deposit, through the date of compliance with this order, in BSB joint accounts 360985774,
to partially satisfy the judgment.
C. Smith Barney Account Numbers 36668031, 36605264, and 36607254
Defendants are also seeking to vacate restraining notices directed at Smith Barney account numbers 36668031, 36605264, and 36607254. It is their contention that these accounts represent either Individual Retirement Accounts or Charitable Organization Accounts and thus, are exempt from levies pursuant to CPLR § 5205.
The FDIC does not dispute the legal basis in which the defendants seek to vacate the restraining notices. The FDIC, however, is asking the court not to disturb the restraining notices until it can confirm defendants assertions through discovery.
Since the prejudice to the FDIC would greatly outweigh any prejudice to the defendants if the restraining notices are vacated or modified at this time, the restraining notices directed at Smith Barney account numbers 36668031, 36605264, and 36607254 are to stay in full force and effect for thirty (30) days from the date of this order to enable the FDIC to conduct discovery to confirm defendants' assertions.
D. Remaining Accounts
Finally, while defendants had made references to certain Smith Barney accounts in defendants' moving papers, defendants have failed to state a legal basis as to why these restraining notices should be vacated or modified. Accordingly, there are no grounds to vacate or modify the restraining notices directed at Smith Barney account numbers 36669004, 36669006, 36681058, 36681022, and 36681065, and they will remain in full force and effect. Thus, defendants' motion is denied as to these accounts.
For the stated reasons, defendants' motion to vacate or modify restraining notices directed at BSB account number 360735302 and Smith Barney account numbers 36669004, 36669006, 36681058, 36681022, and 36681065 is denied.
Defendants' motion is also denied as to BSB account numbers 360985774, 324088087, and 310035456, and defendants are ordered to turnover to the FDIC one-half of all the funds on deposit in these three accounts, through the date of compliance with this order.
Furthermore, defendants' motion is denied as to the restraining notices directed at Smith Barney account numbers 36668031, 36605264, and 36607254. These notices are to stay in full force and effect for only thirty (30) days from the date of this order to enable the FDIC to conduct discovery in connection with defendants assertions.
IT IS SO ORDERED.
Binghamton, New York
April 26, 1994
Thomas J. McAvoy
Chief U.S. District Judge