Matter of Menahem

[*1] Matter of Menahem 2006 NY Slip Op 51996(U) [13 Misc 3d 1226(A)] Decided on October 4, 2006 Sur Ct, Kings County Lopez-Torres, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 31, 2006; it will not be published in the printed Official Reports.

Decided on October 4, 2006
Sur Ct, Kings County

In the Matter of the Estate of Joseph Menahem, Deceased.



4191/2004



Appearing For Petitioner:

The Mangiaracina Law Firm

164-23 92nd Street

Howard Beach, New York 11414

Appearing For Objectant/Cross-Petitioner:

Max D. Leifer, P.C.

434 Broadway, 4th Floor

New York, New York 10013

Margarita Lopez-Torres, J.

In this contested administration proceeding, the parties have brought a motion and cross-motion seeking to renew their prior motions for summary judgment made on January 17, 2005, August 9, 2005 and September 21, 2005 and which were denied by orders of this court dated May 17, 2005 and December 28, 2005.

FACTS AND PROCEDURAL HISTORY

At issue in the present motions is the validity of a pre-nuptial agreement entered into by decedent, Joseph Menahem (Joseph), and his wife Gita Menahem (Gita) by which both waived their inheritance rights to each other's separately owned property. The parties executed the agreement in January, 2000, in anticipation of their wedding on March 4, 2000.

The marriage between Gita and Joseph, which occurred in Brooklyn, New York, was Gita's second marriage and Joseph's first marriage. Gita's first marriage ended in divorce.[FN1]

Joseph died on May 5, 2004 survived by Gita and his father, Isaac Menahem (Isaac). Joseph had no children and his mother predeceased him. On May 25, 2004, Isaac post-deceased Joseph, leaving a will disposing of his assets among his seven children. Isaac's son, Shlomo Menahem (Shlomo) was appointed the representative of Isaac's estate in Israel, where Isaac resided prior to his death.

Dorette Dayan (Dorette) and Chaim Schwartz (Chaim) respectively filed a petition and cross-petition for letters of administration in this estate.[FN2] [*2]

On August 9, 2005, Chaim brought a motion for summary judgment seeking to void the pre-nuptial agreement upon the ground that it was improperly acknowledged, and a finding that Gita could inherit from Joseph's estate. The copy of the agreement submitted to this court as an attachment to Dorette's Petition for Letters of Administration and on which Chaim's motion was based contains a "Verification" by Joseph and Gita but in two separate statements. The Joseph "Verification" is notarized by Ivan L. Van Lear and reads as follows:

On the 12 day of January, 2000, before me came and personally appeared JOSEPH MENAHEM, a person know (sic) to me and who identify himself to me and who did sign his name in front of me this 12 day of January, 2000.

The Gita "Verification" was notarized by Sam Zalta (Zalta) and states as follows:

On the 17 day of January, 2000, before me came and personally appeared GITA LAFER, a person known to me and who did identify herself to me and who did sign her name above before me.

(Hereinafter, "Gita's verification statement")

On September 21, 2005, Dorette filed a cross-motion for summary judgment seeking a ruling that the pre-nuptial agreement was valid, which would result in a determination that Gita had given up her inheritance rights in Joseph's estate. In support of her cross-motion and in opposition to Chaim's motion, Dorette submitted a copy of the pre-nuptial agreement with three extra pages attached to it.

The first page consists of a notarized acknowledgment signed by Zalta with respect to Gita, and is as follows:

On the 17 day of January in the year 2000, before me, the undersigned personally appeared Gita Lafer also known as Gita Laffer, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual executed the instrument.

(Hereinafter, "Zalta's certificate of acknowledgment")

The second page is an acknowledgment notarized by Van Lear with respect to Joseph, and is as follows:

On the 12 day of January in the year 2000, before me, the undersigned personally appeared Joseph Menahem, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual executed the instrument.

The third page contains the following notarized statement by Zalta:

On the 17 day of Oct, in the year 2005, before me, the undersigned, personally appeared SAM ZALTA, the subscribing notary witness to the foregoing instrument, with whom I am [*3]personally acquainted, who, being duly sworn, did depose and say that he resides at 1804 East 7th Street, Brooklyn, New York 11223; that he knows Gita Lafer also known as Gita Laffer to be the individual described in and who executed the foregoing instrument, that said subscribing witness was present and saw said Gita Lafer also known as Gita Laffer execute the same; and said witness at the same time subscribed his name as a witness thereto.

(Hereinafter, "Zalta's subscribing witness statement")

The parties each submitted, in connection with their original motions, affidavits from Zalta, one stating that Gita did acknowledge the pre-nuptial agreement and one stating that she did not. In light of the discrepancies, the court, by decision dated December 28, 2005, denied the motions for summary judgment.

THE PRESENT MOTIONS AND THE PARTIES'ARGUMENTS

The parties have now brought motions to renew their prior motions for summary judgment. Chaim, upon renewal, seeks an order finding the prenuptial agreement void, finding Gita to be the sole distributee of the decedent's estate, granting letters of administration to him, as Gita's designee, dismissing the petition of Dorette and granting costs and sanctions against Dorette and her attorneys.

In his motion, Chaim contends that he is entitled to summary judgment because the pre-nuptial agreement does not comply with the statutory formalities of EPTL 5-1.1-A(e)(2), RPL §§306 and 309-a, and is therefore void. He also contends that the acknowledgment in the pre-nuptial agreement may not be cured after Joseph's death.

Dorette cross-moves to renew her prior motion for summary judgment, and upon renewal, for an order finding the prenuptial agreement to have been duly executed, granting her letters of administration, dismissing the cross-petition of Chaim, dismissing Gita's affirmative defenses, and granting costs and sanctions against Chaim and his attorneys.

Dorette contends that as remedied by the submission of Zalta's certificate of acknowledgment and of Zalta's subscribing witness statement, the pre-nuptial agreement is in conformance with the statutory formalities. She also seeks to "revisit" the issue of the validity of Gita's marriage to the decedent. She alleges that Gita obtained her divorce by making false statements to the court, and therefore, the divorce is invalid.

DISCUSSION

The Motions to Renew

A motion to renew pursuant to CPLR 2221 is allowed where a party has new facts or new law that would affect the prior decision that was issued and a reasonable justification for the failure to present the new facts in the prior motion. The requirement that a motion for leave to renew a prior motion be based on new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496 [2d Dept 2004]). However, a motion to renew should be denied where movant fails to offer a reasonable justification for not presenting those known facts on the original motion. Id.

It is well settled that summary judgment may be granted only where it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]). The key to summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [*4][1957]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).

Chaim alleges that new facts have been discovered since he submitted his last motion for summary judgment. These "new" facts were discovered through the deposition testimonies of Zalta, Dorette and of Dorette's son, Joseph Dayan, in addition to Dorette's answer to Chaim's interrogatories. These depositions took place after the original motions were decided.

According to Chaim, this new evidence reveals the circumstances surrounding the creation of the "new" certificates of acknowledgment attached to the front of the pre-nuptial agreement in Dorette's original cross-motion. Dorette testified in her deposition and avers in her affidavit in support of her present cross-motion that, in order to "cure" the defective acknowledgment attached to the agreement, she obtained a "new" certificate of acknowledgment that complies with the statutory requirements and also obtained Zalta's subscribing witness statement.

In his deposition, Zalta testified that he does not recall the circumstances of the execution of this agreement by Gita in January, 2000, but that he does recall that at one time, Gita came into his office, showed him identification, and signed her name on a document.

Chaim argues that the facts revealed during Dorette's deposition regarding the creation of Zalta's certificate of acknowledgment and Zalta's subscribing witness statement 16 months after Joseph's death, together with Zalta's deposition testimony that he does not recall the specific details of the execution of this agreement provide reasons for renewal.

Chaim's motion to renew his motion for summary judgment for an order finding the prenuptial agreement dated January 17, 2000 void is granted to the extent that renewal is allowed. However, upon renewal, this court adheres to its prior determination in its decision dated December 28, 2005.

Further, based upon this record, Dorette's cross-motion for an order granting renewal of her cross motion for summary judgment and finding the agreement duly executed is denied. In this new cross-motion, Dorette has presented no new facts regarding the issue of the acknowledgment of the agreement not in her possession at the time of the original motion. This motion is in reality a motion to reargue. The allegations contained in her papers are insufficient to warrant renewal of the petitioner's prior motion for summary judgment.

Triable Issues of Fact Exist

Estates, Powers and Trusts Law 5-1.1-A(e)(2) establishes the requirements for an effective waiver of a spouse's right of election against the estate of a deceased spouse:

To be effective under this section, a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.

As established by Real Property Law §§291, 292 and 304, a conveyance of real property may be proved for recording purposes either by an acknowledgment of the person who executed the conveyance or by the proof submitted by a subscribing witness, that is, a person who was a witness of the execution and who at the same time subscribed his or her name to the conveyance as a witness. [*5]

With respect to proof by acknowledgment, RPL §306 provides that a person taking such acknowledgment must attach a signed certificate to the document. Case law has interpreted the requirements of the Real Property Law to mean that in order to be valid, an acknowledgment must encompass two critical elements: the oral declaration of the signer of the document, and the written certificate of acknowledgment, endorsed by one of a number of authorized public officers, attesting to the oral declaration (Estate of Henken, 150 AD2d 447 [2d Dept 1989]).

While Chaim is correct that a failure to acknowledge an agreement waiving inheritance rights may not be cured after the death of one of the spouses, a waiver of such rights that has been acknowledged, but contains an improper certificate of acknowledgment or subscribing witness certificate may be corrected (see, Matter of Felicetti, NYLJ, Jan. 22, 1998, p. 31, col. 3 [Surr Ct, Nassau County]; Donahey v Donahey, NYLJ, Oct. 19, 1999, p. 32, col. 6 [Sup. Ct, Westchester County]; see also, Rogers v Pell, 154 NY 158, 530 [1897]; People ex. rel. Sayville Steamboat Co. v Kempner, 49 AD 121 [1st Dept. 1900] ).

In this case, it is undisputed that Gita's verification statement attached to the agreement filed with Dorette's original petition in this court is not an acknowledgment in proper form. Dorette's attempt to correct this statement by obtaining Zalta's certificate of acknowledgment does not cure the defect, because of the conflicting affidavit of Zalta stating that the document was not acknowledged. These contradictory statements raise issues of fact as to whether the agreement was properly executed that need to be resolved at trial.

The execution of this agreement may also be proved in the second manner in which a conveyance of real property could be proved, i.e., by the statement of the subscribing witness (Estate of Saperstein, 254 AD2d 88 [1st Dept 1998](statement of subscribing witness of waiver of right of election prepared after deceased spouse's death sufficient to prove that waiver was valid); Estate of Maul, 176 Misc 170 [Surr Ct, Erie County, 1941] aff'd 262 AD 941, aff'd 287 NY 694 (subscribing witness' testimony at hearing allowed to prove the waiver of an elective share); Matter of Felicetti, supra (motion to dismiss based on invalidity of waiver of right of election as a result of improper acknowledgment denied because notary could supply necessary proof as subscribing witness); Estate of Beckford, 280 AD2d 472 [2d Dept 2001](deposition testimony of the attorney who notarized the spouse's signature on the prenuptial agreement created an issue of fact as to whether waiver of right of election is valid); see, also Matter of Kazuba, 9 Misc 3d 1116(A) [Surr Ct, Nassau County 2005]).

The submission of Zalta's subscribing witness statement could then provide the necessary proof to establish the validity of the prenuptial agreement and the waiver of Gita's inheritance right contained therein. But, once again, in light of the contradictory statements of Zalta contained in the record and his deposition, the court is not prepared to conclude that this agreement was effectively executed.

It follows that the motion for summary judgment declaring the agreement void must be denied and a hearing held regarding the circumstances surrounding the execution of this agreement. The contradictory statements contained in the record raise issues of fact as to whether the waiver in the pre-nuptial agreement is valid (Estate of Beckford, supra ).

Dorette's Motion to Invalidate the Marriage

On January 17, 2005, Dorette filed a motion for summary judgment upon the ground that the marriage between Gita and Joseph was not valid, because Gita obtained only a religious divorce, and failed to obtain a civil divorce from her first husband. That motion was denied by [*6]this court on May 17, 2005.

Dorette now seeks to renew that prior motion for summary judgment on the grounds that the divorce judgment presented by Gita is invalid. Dorette claims that information that she obtained from Gita during discovery after the filing of the original motion reveals that Gita made false allegations in the context of that divorce proceeding.

Dorette's request for this court to "revisit" its ruling in its Decision of May 17, 2005 is denied. While it may be in the court's discretion to grant renewal upon facts known to, or that could have been ascertained by, the moving party at the time of the original motion, a motion for leave to renew is not a second chance freely given to parties who have failed to exercise due diligence in making their first factual presentation (Renna v Gullo, 19 AD3d 472 [2d Dept 2005]).

It was Dorette's choice to make that motion prior to the completion of discovery and the filing of a note of issue. After having failed to complete discovery prior to making her motion, Dorette seeks to present "new evidence" to this court in order to collaterally attack a Judgment of Divorce obtained in January 6, 1999 in Supreme Court, New York County. Simply, these "new" facts could have been ascertained with the exercise of due diligence before Dorette filed her original motion (Carter-Clark v Random House, Inc., 17 AD3d 241 [1st Dept. 2005]).

Even if the court were to consider the merits of Dorette's motion, it would deny it. While it is well settled that the validity of a divorce decree may be collaterally attacked in the Surrogate's Court when that issue is pertinent to a proceeding pending before it relating to the decedent's affairs, (see Estate of Baldiviezo, NYLJ, Oct. 21, 1997 at 28, col 4; Estate of Schell, NYLJ, Dec. 12, 1990 at 25, col 6; Estate of Garces, 134 Misc 2d 168 (Surr Ct, Nassau County 1986); Estate of Spring, 280 AD 642 (3d Dept 1952), this court in its discretion declines to entertain a collateral attack on the Judgment of Divorce issued by Supreme Court, New York County. That motion would be more fully and properly determined in the court that rendered the

judgment based upon the original papers and record with notice to the parties who were in the original cause of action [FN3] (see Harris v Interstate Training Service, 140 NYS2d 8 [Sup Ct, Monroe County 1955]).

The parties' requests for costs and sanctions are denied. The remainder of the relief requested in the motion and cross-motion are denied as without merit.

Accordingly, for the foregoing reasons, the motion and cross-motion are denied in their entirety.

This constitutes the decision and order of the Court.

____________________________________

HON. MARGARITA LOPEZ-TORRES

S u r r o g a t e [*7]

Dated:Brooklyn, New York

October 4, 2006 Footnotes

Footnote 1: Gita was married in a religious ceremony in Israel to Reuven Lafer (Lafer). She obtained a religious divorce from Lafer on August 20, 1998 in New York, which she subsequently filed in Israel. A Judgment of Divorce was also entered in Supreme Court, New York County dated January 6, 1999, where Gita obtained an uncontested divorce on the ground of abandonment.

Footnote 2: Shlomo has designated his sister, Dorette Dayan to petition for letters of administration on behalf of their father's estate. Gita has filed objections and designated her stepfather, Chaim Schwartz to cross-petition for letters of administration on her behalf.

Footnote 3: This court does not have jurisdiction over Reuven Lafer, who was a party in the divorce action.