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MTR. OF AGIORITIS

52 A.D.2d 128 (1976)

In the Matter of The Estate of Peter Agioritis, Deceased. Florence O. Agioritis, Appellant-Respondent; Michael A. Saytanides, as Attorney in Fact for Vassilios I. Agioritis, Also Known as Basos I. Agioritis, and Others, Respondent-Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

April 29, 1976

Attorney(s) appearing for the Case

Leonard S. Leaman for appellant-respondent.

Edward L. Sadowsky of counsel (Peter C. Valente and Mona D. Shapiro with him on the brief; Tenzer, Greenblatt, Fallon & Kaplan, attorneys), for respondent-appellant.

STEVENS, P. J., SILVERMAN and CAPOZZOLI, JJ., concur with BIRNS, J.; LYNCH, J., dissents in an opinion.

BIRNS, J.

For the first time we are called upon to construe and apply that provision of the Estates, Powers and Trusts Law (EPTL) which provides a surviving spouse with the right to treat as a testamentary substitute money deposited in Totten trust savings bank accounts after August 31, 1966 (EPTL 5-1.1, subd [b], par [1], cl [B]).

Petitioner initiated a proceeding in the Surrogate's Court, as the surviving...

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