Rubin & Rothman, L. L. C., for petitioner.
Astoria Federal and another, respondents pro se. Janet Briante, judgment debtor pro se.
Scott Fairgrieve, J.
This court recalls its prior decision of October 5, 2001 and issues the following corrected decision. Petitioner's application for a turnover order, pursuant to CPLR 5225 or 5227, is
granted. Respondent bank is directed to turn over to petitioner monies from the account of the judgment debtor at issue, up to the full amount of the outstanding balance of the judgment owed by respondent to petitioner.
The facts demonstrate that petitioner obtained a judgment against the respondent in the sum of $3,950.23 on January 29, 2001. An information subpoena and questionnaire were served upon respondent bank Astoria Federal. Astoria Federal responded that the judgment debtor and respondent, Fred Anusiak, owned a joint bank account in the approximate sum of $5,639.68.
Petitioner's application is unopposed. A review of the file demonstrates that the proceeding was properly commenced, including all necessary parties: the bank, Astoria Federal, and the nonjudgment tenant, Fred Anusiak. (See Mendel v Chervanyou, 147 Misc.2d 1056.) The court notes that the respondent Fred Anusiak was served personally with the petition on June 12, 2001.
Petitioner contends that it is entitled to the proceeds of the account to satisfy the judgment. This court agrees with the petitioner that it is entitled to the amount of the Astoria bank account to satisfy the judgment. Since both the respondent judgment debtor and the respondent nonjudgment cotenant were properly served with the turnover application, their default is deemed an admission and/or concession that the bank account proceeds belong to the judgment debtor.
A default in answering under New York law establishes for liability purposes the allegations of the pleading (complaint or petition). (See McClelland v Climax Hosiery Mills, 252 N.Y. 347.) The purpose of CPLR 5225 and 5227 is to resolve in a plenary proceeding the respective rights and interests of parties to their respective interests in bank accounts. (See Matter of Ruvolo v Long Is. R. R. Co., 45 Misc.2d 136.)
A case directly on point on this subject is Mendel v Chervanyou (147 Misc.2d 1056). In Mendel, the petitioner judgment creditor claimed that it was entitled to the full proceeds of the joint account which was in the name of the judgment debtor and another person. The court held that a rebuttable presumption exists that each joint tenant owns half of the account.
In Mendel, the court stated that the petitioner judgment creditor had the burden to prove that the presumption should be rebutted to allow the judgment creditor ...