Matter of Santiago

[*1] Matter of Santiago 2004 NY Slip Op 51372(U) Decided on November 12, 2004 Surrogate's Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2004
Surrogate's Court, Bronx County

IN THE MATTER OF THE ESTATE OF FRANK SANTIAGO, Deceased



235-A/2002

Lee L. Holzman, J.

In this motion for summary judgment, the movants, who are the adoptive parents and guardians of the property of the decedent's alleged non-marital daughter ("child"), seek the following: a declaration that the child is the decedent's sole distributee, revocation of the letters of administration that had issued to the decedent's mother ("respondent"), and the entry of an order directing the respondent to account for all funds received by the estate and to reimburse the estate for any funds that had been distributed.

The child's adoption does not have any impact on her right to inherit from the decedent because she was not adopted until seven months after the decedent died intestate on January 19, 2002. Letters of administration issued to the respondent on March 26, 2002, based on her representation that the decedent's mother is his sole distributee. The respondent still contends that the child is not the decedent's daughter.

The documentary evidence upon which the movants rely are an acknowledgement of paternity, purportedly duly executed by the decedent and the child's mother, and the child's birth certificate. The acknowledgment of paternity is on New York City form LDSS-4418, Acknowledgment of Paternity, "Pursuant to § 4135-b of the Public Health Law". The form reflects that the child's mother signed the document before two witnesses on April 13, 1999 and that the decedent signed it before two witnesses on April 15, 1999. The Deputy City Registrar signed, dated and approved the document on April 19, 1999, certifying that there were "no omissions or apparent errors" in it and that it was filed with the New York City Department of Health on that date. The decedent's address and social security number are correctly set forth in the document. The form appears to comply with the requirements of Public Health Law § 4135-b and contains, inter alia, the following language: I understand that signing this acknowledgment will establish the paternity of the child and have the same force and effect as an order of filiation entered after a court hearing including an obligation to provide support for the child. Except that only if this acknowledgment is [*2]filed with the registrar where the birth certificate is filed will the acknowledgment have such force and effect with respect to inheritance rights. I have received written and oral notice of my legal rights and the consequences of signing the acknowledgment of paternity, and I understand what the notice states. A copy of the written notice has been provided to me. I certify that the above information is true.

The child's birth certificate, issued on April 19, 1999, indicates that she was born on April 12, 1999, that the decedent is her father and that her last name is the same as the decedent's. The movants assert that it must be presumed that the Registrar mailed a copy of both the birth certificate and acknowledgment of paternity to the decedent pursuant to Public Health Law § 4135-b(1)(b). They also assert that the respondent knew of the existence of the child when she filed her administration petition inasmuch as the attorney who was then representing her had entered into negotiations with them with respect to the distribution of the decedent's estate.

In her affidavit in opposition, the respondent concedes that the child's mother would visit the decedent and that the decedent was served with a neglect petition from the Department of Social Services, alleging that he was the child's father. Nevertheless, she asserts that the acknowledgment of paternity is a fraudulent document and that the decedent could not have been the child's father because his paraplegic condition left him with "no sensory sensation on his lower trunk," which prevented him from engaging in sexual intercourse. She states that the document is a fraud for the following reasons: the decedent's signature is a forgery, the signatures of the witnesses appear to be in the same handwriting, the document indicates that the decedent was born on March 21, 1964 while he was actually born on March 21, 1966 and that the decedent was incarcerated on the date that he purportedly signed the document. She alleges that the reason that the decedent and the child's mother spent time together was because they were both drug abusers and that they assisted each other in obtaining drugs. She explains the failure to oppose the neglect petition on the decedent's advice to "ignore" it because it was impossible for him to be the father and that he had not signed any document acknowledging paternity. Both the respondent and her former daughter-in-law aver that the child's mother admitted to them that the decedent was not the father. The former daughter-in-law also states that another woman with whom the decedent was friendly had told her that the decedent "could not fulfill her sexual desires". In short, the respondent contends that the child's mother was a conniving, drug-addicted prostitute who obtained a fraudulent acknowledgment of paternity.

It is well settled that summary judgment will be granted only where no material triable issue of fact exists (Phillips v Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Once the movant has made out a prima facie case, the burden of going forward with proof, in evidentiary form, establishing that the movant is not entitled to judgment shifts to the party opposing the motion (Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and that issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, [*3]Ltd. v Pope, 12 NY2d 491 [1963]; Esteve v Abad, 271 App Div 725 [1947]).

EPTL 4-1.2(a)(2)(A) explicitly provides that a non-marital child may inherit from her father where "the mother and father of the child have executed an acknowledgment of paternity pursuant to section four thousand one hundred thirty five-b of the public health law, which has been filed with the registrar of the district in which the birth certificate has been filed." Furthermore, Public Health Law § 4135-b(1)(a) provides that the signatories to an acknowledgment of paternity have 60 days from signing the acknowledgment to seek recission and that, after that period, the "signatories may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or mutual mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (see Linda I.V. v. Gill R.C., 176 Misc 2d 573 [1998]).

Here, the documents submitted by the movants make a prima facie showing entitling them to judgment as a matter of law. The respondent challenges the acknowledgment of paternity on the grounds of fraud. Thus, the question presented is whether the respondent has submitted proof, in evidentiary form, which prima facie meets her burden of proof on the issue of fraud. The answer is no.

At the outset, the conceded failure to oppose the neglect petition might very well either equitably or collaterally estop the respondent, at this late date, from either disputing paternity or the child's right to inherit from the decedent (see Matter of Cipriani, N.Y.L.J., November 13, 2001, at 21, col. 2, affd 298 AD2d 263 [2002]; Robin I. v. Ronald J., 282 AD2d 837 [2001]; Matter of Peter B. B. v. Robin C.C., 256 AD2d 889 [1998]). Assuming arguendo that the respondent can overcome the estoppel hurdle, she has failed to submit proof, in evidentiary form, to meet her burden of establishing that the acknowledgment of paternity is a fraudulent document. The contention that the decedent was unable to engage in sexual intercourse was based solely on inadmissible hearsay statements. No medical proof was submitted to support this allegation. The respondent's conclusory statement that the witnesses' signatures appear to have been signed by the same person would not be admissible at trial. This was the only proof offered on this subject. Neither the respondent nor the court is a handwriting expert. Nevertheless, it is not apparent to the court that the signatures of the witnesses were written by the same person. The respondent's conclusory self-serving statement that the decedent did not sign the acknowledgment of paternity would be barred at trial should an objection be interposed pursuant to CPLR 4519. Although the court, under many circumstances, may consider testimony that might be barred by CPLR 4519 to defeat a motion for summary judgment (Philips v. Kantor & Co., supra), the respondent's conclusory allegation, which is not supported by an exemplar of the decedent's signature or by the opinion of an expert or disinterested witness familiar with his signature, would be insufficient to meet her burden of proof to establish a forgery (Banco Popular North America v. Victory Taxi Management, Inc., 299 AD2d 223 [2002]). The document submitted by the respondent from the Department of Correctional Services does not, without further explanation, establish that the decedent was incarcerated on April 15,1999, the date that he appears to have signed the acknowledgment of paternity. Furthermore, even if he were incarcerated on that date, there is nothing on the acknowledgment of paternity which indicates the location where it was signed by the decedent.

For the reasons stated herein, the court concludes that the evidence submitted, in admissible form, establishes that the child is the child of the decedent who is entitled to inherit from him under EPTL 4-1.2(a)(2)(A) and thus his sole distributee under EPTL 4-1.1(a)(3). Therefore, [*4]regardless of whether the respondent administratrix received letters of administration in a good faith belief that she was the decedent's sole distributee, the letters previously granted to her must be revoked (Matter of Barasch, 32 Misc 2d 548 [1962]).

Accordingly, the motion for summary judgment is granted to the following extent: the court finds that the child is the decedent's daughter and sole distributee; the letters of administration granted to the respondent shall be revoked in the decree to be settled herein; and the respondent shall be directed to render and seek the judicial settlement of her account within 45 days of the service upon her of the decree to be settled herein. The order restraining the respondent from distributing any assets of the estate until the further order of this court shall remain in effect. Letters of administration d.b.n. may issue to the movants upon their filing a petition and duly qualifying according to law.

Settle decree.

SURROGATE