(dissenting). Francis Corby (Corby) opened a joint bank account on September 18, 1973 with his only daughter,. Frances (Corby) Moyer (Moyer), and within two months after that date the deposits totaled $20,000.
On January 3, 1974, Corby withdrew all of the money in the account by bank check payable to himself and indorsed to the order of the defendant, Elizabeth Briggs (Briggs). Contemporaneous with the delivery of the check to Briggs, Corby executed a last will and testament bequeathing all of his property to Briggs and naming her as executrix. On February 11,1974, a little more than a month later, Corby died of terminal cancer. Briggs deposited these funds with the First Federal Savings & Loan Association (Bank). It may be parenthetically noted that the Bank was initially joined as a party defendant; however, Special Term granted the Bank’s cross motion to be considered a stakeholder, with the consent of the other parties concerned, *68and the Bank is not participating in the prosecution of this appeal.
Moyer sued for the return of the funds and, after issue was joined, moved for summary judgment, which motion was granted by Special Term.
It has been stated that, given a valid joint account, “ There are no circumstances in which the survivor will be entitled to less than the whole fund where one of the tenants has withdrawn more than his moiety and the right of survivorship has vested in either one of them since a withdrawing joint tenant can only suffer a forfeiture to a survivor in whom that right has vested.
"In short, after a right of survivorship has vested, there should in legal theory never be a recovery of half the fund or the excess over the moiety. The survivor must take all. Only while both joint tenants are still living may the recovery be for the excess over the moiety withdrawn.” (Matter of Filfiley, 63 Misc 2d 824, 829-830, affd. on opn. of the Surrogate 43 A D 2d 981 [2d Dept.].)
We have taken a similar position on this issue (Matter of Kleinberg v. Heller, 45 A D 2d 514). Furthermore, plaintiff may also rely on the statutory presumption that the parties intended a joint tenancy (Banking Law, § 675).
The only question therefore remaining is whether defendant has presented an issue of fact sufficient to warrant denial of summary judgment.
In opposition to the motion at Special Term, defendant Briggs submitted an attorney’s affidavit as well as her own affidavit. The attorney referred to certain alleged misstatements of fact in plaintiff’s papers, and Briggs alleged that Corby’s landlord had insisted he open a joint account with Moyer for the sake of convenience since Corby was already suffering from terminal cancer. The assertions of the attorney’s affidavit relating to alleged misstatements of fact must be disregarded, since they are not based on his own personal knowledge of the facts involved. Similarly, since there is no affidavit from Corby’s landlord which would confirm the allegation in Briggs ’ affidavit about opening the account as a “ convenience,” it too must be disregarded.
■ Furthermore, the allusions to forthcoming affidavits from the attorneys who drew Corby’s will as well as the proposed production of alleged transcripts of tapes made by the deceased evidencing his intent to disinherit his only living blood relative must also be disregarded, .since these affidavits and transcripts *69were not produced, and no explanation was given for their absence (see e.g., CPLR 3212, subd. [f]).
The law is clear that the withdrawal of all of the funds from a validly created joint account does not destroy the joint tenancy, but merely allows for introduction of competent evidence that no joint tenancy was intended to be created (Matter of Bricker (Krimer) v. Krimer, 13 N Y 2d 22, 27).
However, in this case such “ competent evidence” was not produced. While it is true that evidence which may be subject to the bar of the “ Dead Man’s Statute ” (CPLR 4519) at the time of trial may aid to defeat a motion for summary judgment (Phillips v. Kantor & Co., 31 N Y 2d 307), nevertheless, presentation of a triable issue of fact still remains the sine qua non for denial of summary judgment. These issues must be genuine, not feigned (Glick & Dolleck v. Tri-Pac Export Corp., 22 N Y 2d 439, 441); based on ‘ ‘ proof, ’ ’ not shadowy and conclusory statements (Curry v. Mackenzie, 239 N. Y. 267, 270).
In this case, Moyer, the daughter of the deceased, produced the evidentiary material necessary to grant summary judgment in her favor.
The defendant Briggs, however, offered nothing other than tantalizing speculation. Not a scintilla of evidence sufficient to create a ‘ ‘ triable issue of fact ’ ’ was produced. Even the evidence “ promised ” for production at a later date is of dubious probative value.
As Judge (now Chief Judge) Breitel so aptly stated, ‘ ‘ Summary judgment should be denied where there is any doubt, at least any significant doubt, whether there is a material, triable issue of fact (e.g., Glick & Dolleck v. Tri-Pac Export Corp., 22 NT Y 2d 439, 441; Exchange Leasing Corp. v. Bundy, 29 A D 2d 828; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., ¶ 3212.05c) ” (Phillips v. Kantor & Co., 31 N Y 2d 307, 311). In the case at bar, there was no such significant doubt which would mandate denial of summary judgment.
Accordingly, the judgment entered September 5, 1974 based on an order granting summary judgment should be affirmed.
Nunez and Kttpeerman, JJ., concur with Ltjpiano, J., in an opinion; McGtvern, P. J., and Lane, J., dissent in an opinion by Lane, J.
Judgment, Supreme Court, New York County, entered on September 5, 1974, and order of said court entered on August 30, 1974, reversed, on the law, the judgment vacated, and plaintiff’s motion for summary judgment denied. Appellant shall recover of respondent $60 costs and disbursements of this appeal.