MATTER OF STEINBERG

Decree affirmed, with costs, payable by appellant personally.

Upon our review of the record, we find that decedent's lack of capacity at the time the two joint bank accounts in question were created was established by clear and convincing evidence. The record further supports the Surrogate's determination that appellant abused the confidential relationship he enjoyed with decedent and that appellant's testimony was not credible. Accordingly, the Surrogate properly decreed that the proceeds of the two accounts constitute assets of the estate (see Banking Law, § 675; Allen v. La Vaud, 213 N.Y. 322; Matter of Poggemeyer, 87 A.D.2d 822). Titone, J.P., Mangano, Gibbons and O'Connor, JJ., concur.