HAYNES v. TOMA

ORDERED that the judgment is modified by deleting the provision thereof distributing 50% of the Lehman Brothers account; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff contends that the Supreme Court erred in finding that a $40,000 advance from the plaintiff's father for a down payment on the marital residence was a gift to both parties. The plaintiff asserts that the money was a loan to him alone. However, the defendant failed to meet his burden of proving that the $40,000 was separate property, and the Supreme Court properly found it to be marital property subject to equitable distribution (see Fuegel v. Fuegel, 271 A.D.2d 404; Pauk v. Pauk, 232 A.D.2d 386; Strang v. Strang, 222 A.D.2d 975; Icart v. Icart, 186 A.D.2d 918; Ackley v. Ackley, 100 A.D.2d 153).

Based upon the concession by counsel for the defendant, the Supreme Court improperly distributed the Lehman Brothers account. The parties agree that the account was cashed in and used for marital purposes rather than for the plaintiff's personal needs. Accordingly, the judgment must be modified as provided herein.

FLORIO, J.P., FEUERSTEIN, McGINITY and SCHMIDT, JJ., concur.