Matter of Atiram

[*1] Matter of Atiram 2009 NY Slip Op 52534(U) [25 Misc 3d 1241(A)] Decided on December 16, 2009 Sur Ct, Kings County Johnson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 18, 2009; it will not be published in the printed Official Reports.

Decided on December 16, 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.

Shelly Atiram, ("Movant"), moves for summary judgment in this proceeding brought by the executor of the estate for a judicial determination on Movant's entitlement to take an elective share of Sam Atiram's ("Decedent") estate pursuant to Estates, Powers and Trusts Law ("EPTL") 5-1.1-A.

Decedent died on October 13, 2005. On July 5, 2007, his will dated September 23, 2005, was admitted to probate. On February 5, 2006, Movant 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.

In opposition Hadassa Engelsberg, ("Objectant"), a devisee under the will, alleges there are four issues of fact precluding summary judgment, to wit:

1. The marital status of Movant and the Decedent under Israeli law;

2. Whether Movant abandoned Decedent;

3. Whether Movant and Decedent were separated, and if so did Movant receive testamentary substitutes sufficient to extinguish or at least offset her elective share claim; and

4. Whether Movant's decision to claim an elective share was made of her own volition.

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (Andre v Pomeroy, 35 NY2d 361 [1974]). The court's burden is not to resolve issues of fact, but merely to determine if such issues exist (Dyckman v Barrett, 187 AD2d 553 [2d Dept 1992]). It is a drastic remedy that will only be granted where there is no triable issue of fact (Barclay v Denckla, 182 AD2d 658 [2d Dept 1992]). The court, therefore, must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of their day in court (Russell v A. Barton Hepburn Hospital, 154 AD2d 796 [3d Dept 1989]).

The proponent of a summary judgment motion must make a prima facie showing [*2]of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). If however a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form (Romano v St. Vincent's Med. Ctr. of Richmond, 178 AD2d 467 [2d Dept 1991]).

EPTL 5-1.1-A, allows a surviving spouse a personal right of election to take a share of a decedent's estate when the parties are in fact married on the date of the decedent's death. This statute provides that a husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A, unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist. The status of a person as a surviving spouse is a condition precedent to the exercise of the right of election. Thus, one claiming the right to take against a will must first establish that he or she is the lawful spouse of the decedent.

Movant in her affidavit in support of the motion states that she married Decedent on January 2, 1952 in Israel, and remained married to the Decedent until the time of his death, annexing as Exhibit V, a Certificate of Marriage from Israel, its English translation and a notarized declaration of translation. On August 27, 1990, a Jewish religious divorce between Decedent and Movant known as a "Get", which is not recognized as valid under New York law, was obtained under the supervision of the Rabbinical Court of the Rabbinical Alliance of America in New York.

Movant having shown that she and the Decedent were married on June 2, 1952, and remained legally married at the time of his death has made out her prima facie case. The burden now shifts to Objectant to establish a material issue of fact precluding the grant of summary judgment to Movant on her right to take an elective share of the estate.

In opposition it is argued that an extraordinarily important factual issue is whether Movant and Decedent were divorced under Israeli law. In furtherance of this Objectant had commenced on or about August 13, 2009 an ancillary declarative judgment proceeding in Israel. This Court in deciding a companion motion for a stay of proceedings pending the determination of the Israeli court, held that even if that court ultimately decided that Movant and Decedent were divorced under Israeli law, it would not defeat Movant's right of election, which became fixed and unalterable upon the death of the Decedent (2009 NY Slip Op 52368(U); NYLJ, Dec. 1, 2009 at 29, col 1 ). As such, it is irrelevant that the Israeli court has since determined that, "[t]he deceased and the defendant no. 1, being Jewish, divorced each other as Jews, in the United States on August [*3]27, 1999"[FN1], which this Court was made aware of in a letter dated November 11, 2009 from Objectant's attorney containing a copy of the Israeli court's decision, its English translation and certification of translation.

The second alleged issue of fact is whether Movant abandoned Decedent causing her to lose entitlement to the elective share [EPTL 5-1.2(a)(5)]. The burden of establishing abandonment is on the person alleging it ( Matter of Maiden, 284 NY 429 [1940]). The opposition submitted herein consists solely of Objectant's attorney's affirmation referencing Objectant's deposition testimony dated October 23, 2006. An attorney's affirmation is of no probative value unless it is accompanied by documentary evidence constituting admissible proof (see Adam v Cutner & Rathkopf, 238 AD2d 234 [1st Dept 1997]). The transcript of the examination before trial of Objectant is unsigned and unsworn and therefore does not constitute evidentiary proof in admissible form (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2d Dept 2008]). Normally to defeat a summary judgment motion the evidentiary proof demonstrating issues of fact must be presented in admissible form. However, the opponent to a summary judgment motion may be excused from doing so provided an acceptable excuse for the failure to tender evidence in admissible form is supplied (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Maniscalco v Liro Eng'g Constr. Mgt., 305 AD2d 378 [2d Dept 2003]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2d Dept 2000]). Here no excuse for the failure to tender the deposition in admissible form is presented, nor can the Court fathom one as it is Objectant's own deposition (compare Landisi v Beacon Community Dev. Agency, 180 AD2d 1000 [3rd Dept 1992]).

This notwithstanding, even were the Court to consider the deposition testimony taking the allegations therein as true, Objectant fails to show the required elements establishing abandonment. The allegations are:

1. Decedent moved into her home in 1990 where they lived together in an intimate relationship; 2. she took Decedent to doctors and took care of him in the last years of his life; 3. Decedent and Movant arranged for the partition of real property and other assets jointly owned by them; and4. Decedent and Movant had limited contact with each other.

The fact that a spouse leaves the marital home and lives separately from the other is insufficient to prove abandonment (Matter of Maiden, 284 NY 429, supra). As to the allegations sounding in "social abandonment", it has been recently held by the Appellate Division of this Department that "social abandonment" does not qualify as abandonment (Davis v Davis, 2009 NY Slip Op 08579; NYLJ, Nov. 23, 2009 at 17, col 3). For Objectant to meet her burden of proof on abandonment, she must show that it was the Movant who abandoned Decedent, which abandonment was unjustified and without his consent (Matter of Riefberg, 58 NY2d 134 [*4][1983], citing Matter of Maiden, 284 NY 429 & Schine v Schine 31 NY2d 113). None of the above allegations substantiate this, and as such Objectant has failed to raise a triable issue of fact as to whether Movant is entitled to her elective share by reason of abandonment.

The third alleged issue of fact is whether Movant and Decedent were separated, and if so, whether Movant received testamentary substitutes sufficient to extinguish or at least offset her elective share claim. Objectant attaches as an Exhibit B what is purported to be a copy of a unacknowledged separation agreement between the Decedent and Movant dated August 8, 1990, which provides for the division of ownership of various properties. Some of the writing is illegible and Movant's signature is not fully visible. It is argued that this agreement appears to establish that Movant and Decedent intended to live apart, and therefore the basis for this intended separation along with the history surrounding it are probative on the issue of abandonment forming issues of fact for trial.

Even were this alleged separation agreement was properly acknowledged, since the fact that a husband and wife living apart pursuant to a separation agreement does not deprive the surviving spouse of the right of election (Matter of Martin, 45 Misc 2d 852 [Sur Ct, Westchester County 1965]), the circumstances surrounding the agreement would be irrelevant on the issue of abandonment. In fact if Decedent and Movant had agreed to separate and live apart there can be no abandonment there being consent to the separation (Powers v Powers, 33 AD 126 [1st Dept 1898]). Further whether Movant received testamentary substitutes in this alleged separation agreement which extinguish or at least offset her elective share claim is best left for, and can be better determined in an accounting proceeding.

The final alleged issue of fact is whether Movant's decision to claim her elective share is made of her own volition. However, the genesis of Movant's decision to pursue the right of election has no bearing on, and is not relevant to the determination of whether she is entitled to exercise the right of election.

Accordingly as Objectant has failed to establish a triable issue of fact on any of the alleged factual issues, summary judgment is granted in this proceeding determining and recognizing Shelly Atiram's right to take her elective share as against Sam Atiram's net estate as the surviving spouse.

This constitutes the decision and order of the Court.

___________________

Dated:Brooklyn, New YorkHon. Diana A. Johnson

December 16, 2009Surrogate Footnotes

Footnote 1: The decision as translated incorrectly recites the date of the religious divorce as August 27, 1999, rather than August 27, 1990, and the date of Decedent's death as October 30, 2005, rather than October 13, 2005.