Matter of Santiago

[*1] Matter of Santiago 2006 NY Slip Op 52345(U) [13 Misc 3d 1245(A)] Decided on December 7, 2006 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2006
Sur Ct, Bronx County

In the Matter of the Estate of Frank Santiago, Deceased



235-A/02



The appearances are as follows:

Abraham N. Kleinman, Esq., for Rosa Santiago, administratrix

Elovich & Adell (Mitchel Sommer, Esq., of counsel), for Mark and Eileen R., guardians of the property of the infant interested party

Lee Holzman, J.

In this proceeding seeking, inter alia, a determination as to whether an alleged non-marital child is the decedent's sole distributee, the alleged paternity of the non-marital child is based upon an acknowledgment of paternity purportedly executed by the decedent on April 15, 1999 before two witnesses, as required by Public Health Law § 4135-b. Previously, this court rendered two decisions on a summary judgment motion by the guardians of the property of the infant non-marital child and ultimately denied the motion, holding that there were issues of fact as to the genuineness of the decedent's signature on the acknowledgment of paternity form (Matter of Santiago, NYLJ, Feb. 16, 2005, at 26, col 2).

On January 25, 2006, the administratrix, the decedent's mother, served and filed a note of issue, certificate of readiness and a statement of issues. Based upon alleged newly discovered facts emanating from the deposition of the child's birth mother conducted on June 22, 2006, the administratrix moves for summary judgment, contending that the acknowledgment of paternity is null and void because it is a forgery and was not witnessed by two persons as required by law. In support, she submits: (1) a report by an "expert document examiner" located in Texas who, based upon his comparison of the signatures of the decedent on the acknowledgment of paternity form and on a structured settlement questionnaire, concludes that the decedent did not sign the paternity form; and (2) the deposition of the birth mother, indicating that while the decedent was incarcerated at an upstate prison, he signed the document in the birth mother's presence while a guard was posted in an adjacent room with a viewing window and, the following day, the decedent returned the document to her, now bearing the signatures of two witnesses.

The guardians of the infant's property argue that the motion should be denied as it was made more than 120 days after the filing of the note of issue and the administratrix never sought leave to extend her time to so move (Brill v City of New York, 2 NY3d 648 [2004]; CPLR 3212[a]). The administratrix replies that there is good cause for the delay in making her motion, as the deposition of the infant's birth mother did not occur until June 22, 2006 and the transcript of that examination was not made available until July 30, 2006.

The record reflects that consensual discovery did continue after the date of filing of the note [*2]of issue. Assuming, arguendo, that the examination of the birth mother constituted "good cause" for the delay in making this motion, summary judgment motions cannot be granted unless it clearly appears that no material issues of fact exist (Phillips v Joseph Kantor & Co., 31 NY2d 207 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp, 22 NY2d 439 [1968]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]). The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 AD2d 976 [1983]).

Here, neither the deposition of the birth mother, who avers that she saw the decedent sign the document, nor the opinion of the "expert document examiner", standing by itself, is conclusive on the issue of whether the decedent signed the document (see Matter of Sylvestri , 44 NY2d 260 [1978]). Moreover, should it ultimately be concluded that the decedent's signature on the document is genuine, the other purported defects with respect to the execution of the document alleged by the administratrix do not constitute a basis for granting summary judgment in her favor. This is so either because there is a factual dispute with respect to whether, in fact, the execution of the document was in any way defective, or because, notwithstanding that the document might not have been executed in strict compliance with Public Health Law § 4135-b, it may be part of the mosaic establishing the decedent's open and notorious acknowledgment of the child as his own (see EPTL 4-1.2[a][2][C]). Accordingly, the factual issues raised by the affidavit of the handwriting expert and the testimony of the birth mother dictate that the motion be denied.

This decision constitutes the order of the court denying the motion. A pre-trial conference is scheduled for January 29, 2007 at 9:30 A.M., in Courtroom 406. The Chief Clerk shall mail a copy of this decision and order to respective counsel for the parties.

Proceed accordingly.

SURROGATE