majority">Lupiano, J.

This is an appeal from a judgment of the Supreme Court, New York County (Helman, J.), entered September 5, 1974, in plaintiff’s favor in the sum of $20,279.63, with interest and costs, pursuant to a grant of summary judgment to plaintiff.

On September 18, 1973, Mr. Francis Corby opened a bank account in his name and in the name of plaintiff, his daughter, which account was payable to either or the survivor. Over the next two months he made deposits totaling approximately $20,000. On January 3, 1974, only three and one-half months *65after opening this account, Mr. Corby withdrew the entire amount credited to the account and gave this fund to defendant, Elizabeth Briggs. Contemporaneous with this act, Mr. Corby on January 4,1974, apparently executed a last will and testament wherein he bequeathed all his property to said defendant and named her executrix. A short time later, on February 11, 1974, Mr. Corby died, having been afflicted with terminal cancer. Defendant Elizabeth Briggs deposited the afore-mentioned fund in her savings account. Plaintiff in her capacity as surviving joint tenant, made demand on said defendant for this fund and upon the latter’s refusal to return same, initiated this action.

Initially, it is noted that where there is 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are no circumstances in which the survivor will be entitled to less than the whole fund where one of the tenants has withdrawn more than his moiety and the right of survivorship has vested in either one of them since a withdrawing joint tenant can only suffer a forfeiture to a survivor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 Only while both joint tenants are still living may the recovery be for the excess over the moiety withdrawn ” (Matter of Filfiley, 63 Misc 2d 824, 829-830, affd.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 the opinion of the Surrogate in 43 A D 2d 981 [2d Dept., 1974]; see, also, Matter of Kleinberg v. Heller, 45 A D 2d 514 [1st Dept., 1974]). The critical question on this appeal is — has an issue whether a joint tenancy was intended as to the account under consideration been presented on the record herein. Plaintiff is supported in her claim by the statutory presumption as to joint deposits delineated in section 675 of the Banking Law. As no claim of fraud or undue influence is averred against plaintiff in the opening of the account by the decedent, the burden is on defendant Briggs to refute the presumption of a valid joint account (Banking Law, § 675, subd. [b]).

Special Term observed that the ‘ ‘ claim asserted by defendant as a challenge to plaintiff’s right to the funds, is (1) that the donor at the time of the creation of the account had taken the advice of friends to establish such an account instead of keeping large sums of cash at home so that the account could be used solely as a convenience for himself and (2) that at the time of the transfer to defendant, made in the presence of deceased’s attorneys, tapes had been recorded indicating an expressed intention of deceased to deny his cotenant the benefit of any of the funds on deposit” (emphasis supplied). Scrutiny of the *66record discloses that in opposition to plaintiff’s motion for summary judgment, defendant Elizabeth Briggs asserts that the landlady of the deceased, one Margaret Musheaian, being apprised that the deceased kept large sums of money around the house, persuaded decedent to deposit the money in an account with his daughter as joint tenant so as to avoid the danger of robbery and to enable someone to withdraw the money in the event something happened to decedent; that decedent was estranged from his daughter throughout this critical period and, in furtherance of his desire that she should not benefit from his estate, consulted the law firm of Mujica and Goodman and, pursuant to their supervision and advice, executed a will (a copy of which was annexed to defendant’s affidavit) and withdrew the entire amount in the joint account. It is further averred that said law firm made tape recordings of the conversations had with the deceased. The will was not probated, apparently because there were ho assets of the estate other than possibly the fund withdrawn by decedent from the account and transferred to defendant.

In Matter of Bricker (Krimer) v. Krimer (13 N Y 2d 22, 27), the Court of Appeals declared that “ the withdrawal of moneys from the joint account does not destroy the joint tenancy, if one was created. It merely opens the door to competent evidence, if available, that no joint tenancy was intended to be created”. If a joint tenancy was not intended to. be created herein, then the defendant Elizabeth Briggs or, assuming an improper transfer of the fund by decedent to Elizabeth Briggs, the decedent’s estate would be entitled to the fund withdrawn from the account. In this regard, note must be taken of the fact that upon probate of decedent’s will, Elizabeth Briggs in her capacity as executrix would be the representative of decedent’s estate. Under the so-called “ dead man’s statute ”, an exception allows the representative of the estate to testify as to transactions with the decedent to protect the estate against unfounded claims (CPLR 4519).

We have declared that on a summary judgment motion “ issue-finding, rather than issue-determination, is the key to the procedure ” (Esteve v. Abad, 271 App. Div. 725, 727 [1st Dept.]; see Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395). It has also been noted that evidence excludable under the “ dead man’s statute ” may be used to defeat a motion for summary judgment, but not in support thereof (Phillips v. Kantor & Co., 31 N Y 2d 307). Where there is any significant doubt whether there is a material triable issue of fact or where the material issue *67of fact is ‘£ arguable ’ ’, summary judgment must be denied (Phillips v. Kantor & Co., supra; Barrett v. Jacobs, 255 N. Y. 520).

Patently, the circumstances delineated in defendant Elizabeth Briggs’ affidavit in opposition to plaintiff’s motion are sufficient to impel denial of summary judgment on the ground that a material factual issue has been advanced as to the decedent’s intent in regard to the joint bank account, which 'issue requires a hearing for proper resolution.

The judgment and order of the Supreme Court, New York County (Herman, J.), respectively entered August 30, 1974 and September 5,1974, should be reversed, on the law, with costs and disbursements, and plaintiff’s motion for summary judgment should be denied.

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