Kolodziejczyk v. Wing , 689 N.Y.S.2d 825 ( 1999 )

—Determination unanimously annulled on the law without costs and petition granted in accordance with the following Memorandum: Petitioners commenced this CPLR article 78 proceeding to challenge the determination, following a fair hearing, that their household was not eligible for public assistance benefits or food stamps because Nate Rotella (petitioner) was listed with his mother as a joint owner of a certificate of deposit in the amount of $20,000. At the fair hearing, Onondaga County Department of Social Services introduced only the bank account statement listing petitioner and his mother as joint owners of the account. The testimony of petitioner and his mother, however, established that all of the money in the account belonged to petitioner’s mother, that she opened the account herself for her own use and that she intended to confer upon her son only the right of survivorship but not a present beneficial interest in the funds. By the time the hearing was held, petitioner’s mother had closed that account and opened another account in her name alone. That uncontradicted evidence was sufficient to rebut the presumption of joint ownership in Banking Law § 675 (b) and established that the funds were not actually available to petitioner (see, Wacikowski v Wacikowski, 93 AD2d 885, Iv denied 60 NY2d 553; Matter of Radano v Blum, 89 AD2d 858). We therefore grant the petition and annul the determination that petitioners’ household possessed available resources in excess of the statutory minimum exemption. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Onondaga County, Mordue, J.) Present — Pine, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.