Gloria R. DI Nardo v. Blaise DI Nardo

Judgment unanimously modified on the law and as modified affirmed with costs to plaintiff and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: The trial court erred in finding that a $34,217 check defendant received from his mother's estate was separate property. Although this check when received constituted separate property (Domestic Relations Law § 236 [B] [1] [d] [1]), defendant's subsequent actions converted it to marital property. Defendant, upon receipt of this check, comingled it with other assets in a joint account where it remained for a period of seven years. By placing this check in a joint account, a presumption arises that the parties are entitled to equal shares of the account (Banking Law § 675 [b]). Defendant's proof failed to overcome this presumption and, therefore, this check plus accrued interest is marital property (see, Wiercinski v Wiercinski, 116 A.D.2d 789). Additionally, the trial court in its equitable distribution award failed to account for approximately $25,000 in savings accounts which were in existence at the commencement of this action. We remit this matter to Trial Term for a further hearing and the distribution of these marital assets.