Matter of Atiram

[*1] Matter of Atiram 2009 NY Slip Op 52368(U) [25 Misc 3d 1231(A)] Decided on November 9, 2009 Sur Ct, Kings County Johnson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2009
Sur Ct, Kings County

In the Matter of the Proceeding of ZAMIR ATIRAM, as Executor of the Estate of Sam Atiram Deceased



1627-06



For Zamir Atiram: Polizzotto & Polizzotto, LLC, 6911 18th Ave. Brooklyn, NY 11204 (718) 232-1250

For Shelly Atiram: Fonti & Fonti 8516 23rd Ave., Brooklyn, NY 11214 (718) 837-0677

For Hadassa Engelsberg: Katlowitz & Associates, 270 Madison Ave. -Suite 1203, New York. NY 10016 (212) 271-7600

Diana A. Johnson, J.

Hadassa Engelsberg, ("Objectant") moves for an order staying all proceedings pursuant to CPLR 2201, pending the outcome of an ancillary proceeding in Israel.

Sam Atiram ("Decedent") and Shelly Atiram were married in Israel in January 1952. In 1957 they immigrated to the United States. On August 27, 1990, a Jewish religious divorce between them known as a "Get" was procured under the supervision of the Rabbinical Court of the Rabbinical Alliance of America in New York, which is allegedly recognized by the Ministry of Religion of the State of Israel.

Decedent died on October 13, 2005. On July 5, 2007, his will dated September 23, 2005, was admitted to probate. On February 5, 2006 Shelly Atiram gave notice of her intention to exercise her right of election. On July 12, 2007, the executor of the estate, Zamir Atiram, commenced this proceeding to determine the right of Shelly Atiram to claim an elective share under EPTL 5-1.1 A.

Objectant, a devisee under the will, alleges that Decedent and Shelly Atiram were divorced at the time of his death, and therefore Shelly Atiram is not entitled to share in the estate. On or about August 13, 2009 the ancillary proceeding in the Court of Family Matters in Jerusalem, Israel was commenced for which a stay of these proceedings is sought. The proceeding is for a declarative judgment that Shelly Atiram and the Decedent were divorced under Israeli law prior to his date of death.

New York State's Constitution provides in Article I §9 (1), that a divorce may not be granted except upon " due judicial proceedings".It has long been established that a rabbinical divorce does not satisfy the requirements of "due judicial proceedings", and while it may be recognized by a foreign government, is void under New York law, (Chertok v Chertok, 208 AD161 [1st Dept 1924]). To come under the ambit of "judicial proceedings", the controversy must be, " before a competent court or magistrate in the [*2]due course of law or the administration of justice, which is to result in any determination of action of said court or officer.' In any such proceeding there must be parties, and opportunity to be heard, and the tribunal must proceed either to a determination of facts upon evidence or of law upon proved or conceded facts.' ", (Matter of Goldman, 156 Misc 817 [Sur Ct, Kings County 1935] [Internal Citations Omitted]).

Objectant concedes as much in her reply memorandum of law stating that, "[t]here is no doubt that a Jewish decree of divorce ( Get') or any other sort of Religious Divorce is not recognized under the law of New York. There is also no question that a foreign government's mere recognition of a Get should not be given comity under New York law.", (Reply Memorandum at 1 & 2). Objectant argues, however, that the proceeding pending in Israel is a bona fide "judicial proceeding" as that term has been defined in Matter of Goldman, 156 Misc 817, supra. Therefore, Objectant argues, the present case is distinguishable from, Tsirlin v Tsirlin, 19 Misc 3d 1132(A) [Sup Ct, Kings County 2008], where the New York court held that the Israeli rabbinical court divorce was void under New York law as it was predicated upon endorsement of the Get obtained in New York. Here, however, the Israeli court will be determining the marital status of Shelly Atiram and Decedent under Israeli law on the evidence presented, rather than simply endorsing or validating the Get. As such, it is argued, if the Israeli court determines that Shelly Atiram and the Decedent were divorced under Israeli law this determination, unlike in Tsirlin, will be entitled to comity in this court so as to defeat Shelly Atiram's elective share claim.

The Right of Election ( EPTL 5-1.1 A) allows a surviving spouse a personal right of election to take a share of a decedent's estate if the parties are married on the date of the decedent's death. EPTL 5-1.2 permits the disqualification of a person as the surviving spouse, where a final decree or judgment of divorce recognized as valid under the laws of this state was in effect when the deceased spouse died. Here the only "divorce" which was in effect at the time of Decedent's death was the Get which is not valid in New York. Therefore even if the court in Israel were to declare that Shelly Atiram and Decedent were divorced under Israeli law prior to the decedent's date of death, as this determination was not in effect at the time of Decedent's death, it cannot serve to defeat Shelly Atiram's right of election. Shelly Atiram's right to exercise her right of election as the surviving spouse became fixed and unalterable upon Sam Atiram's death, (Bennett v Thomas, 38 AD2d 682 [4th Dept 1971], Matter of Berk, 20 Misc 3d 691 [ Sur Ct, Kings County 2008]).

Accordingly as the yet to be rendered determination of the Israeli Court cannot affect Shelly Atiram's claim to her elective share under EPTL 5-1.1 A , there is no basis for this Court to stay proceedings pending the determination of same. The motion is therefore denied.

This constitutes the decision and order of the Court.

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Dated:Brooklyn, New YorkHon. Diana A. Johnson

November 9, 2009Surrogate