         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1530
CA 09-02324
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF THE ADMINISTRATION OF THE
ESTATE OF CAROL PETOTE, DECEASED.
------------------------------------------        MEMORANDUM AND ORDER
KAREN M. PETOTE, PETITIONER-APPELLANT;

THOMAS CHICHESTER, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT.

MICHAEL A. ROSENHOUSE, ROCHESTER, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Surrogate’s Court, Monroe County
(Edmund A. Calvaruso, S.), entered January 7, 2009. The order, among
other things, denied the petition to grant letters of administration
to petitioner.

     It is hereby ORDERED that the order so appealed   from is
unanimously modified on the law by vacating the fees   awarded to the
Public Administrator and the attorney’s fees awarded   to the attorney
for respondent and as modified the order is affirmed   without costs.

     Memorandum: Petitioner commenced this proceeding seeking to be
appointed administrator of the estate of her sister (decedent). The
petition was opposed by respondent, who alleged that he was married to
decedent and thus had priority over petitioner with respect to the
granting of letters of administration (see SCPA 1001 [1] [a]). In
appeal No. 1, petitioner appeals from an order entered following an
evidentiary hearing that denied the petition and awarded respondent
“costs for fees charged by [the Public Administrator] and
[respondent’s attorney] for the time spent in the hearing . . . .”
Surrogate’s Court determined, inter alia, that respondent was in fact
married to decedent at the time of her death. In appeal No. 2,
petitioner appeals from an order awarding attorneys’ fees to the
attorney for respondent in the amount of $3,000.

     With respect to the order in appeal No. 1, petitioner contends
that the Surrogate erred in admitting in evidence a marriage
certificate from the State of California indicating that respondent
and decedent were married on December 29, 2001, approximately 4½ years
before decedent died. According to petitioner, the marriage
certificate was not properly authenticated pursuant to CPLR 4540.
That contention is not preserved for our review, inasmuch as
petitioner did not object to the marriage certificate at the hearing
                                 -2-                          1530
                                                         CA 09-02324

and did not challenge its authenticity at that time (see generally
Matter of Elijah P., 76 AD3d 631, 632, lv denied 15 NY3d 712; Taitt v
Snelling [appeal No. 2], 74 AD3d 1827). We note that petitioner does
not contend that the marriage certificate is unauthentic, i.e., not a
true and accurate copy of the certificate on file in the Orange County
Clerk’s Office in California. Rather, petitioner contends that
decedent’s purported signature on the certificate is a forgery. Even
assuming, arguendo, that decedent’s signature is a forgery, we
conclude that the forged signature does not have any bearing on the
marriage certificate’s authenticity. We also note that the Surrogate
obtained a copy of the marriage certificate directly from the Orange
County Clerk’s Office in California pursuant to judicial subpoena and
that the marriage certificate was identical to the one proffered by
respondent. We thus perceive no reason to address petitioner’s
contention as a matter of discretion in the interest of justice.

     Petitioner further contends in appeal No. 1 that the Surrogate
imposed an unduly high burden of proof upon her to rebut the marriage
presumption. We disagree. “An extremely strong presumption of
validity arises from . . . a ceremonial marriage” (Matter of Esmond v
Lyons Bar & Grill, 26 AD2d 884, 884), regardless whether the marriage
is performed in the State of New York (see Fisher v Fisher, 250 NY
313, 317; Esmond, 26 AD2d 884). “[T]he well-settled marriage
recognition rule ‘recognizes as valid a marriage considered valid in
the place where celebrated’ ” (Lewis v New York State Dept. of Civ.
Serv., 60 AD3d 216, 219, affd 13 NY3d 358, quoting Van Voorhis v
Brintnall, 86 NY 18, 25). Once respondent produced a facially valid
marriage certificate, petitioner, as “a stranger to the marriage
relationship[, had] a heavy burden to establish its invalidity”
(Matter of Meltzer v McAnns Bar & Grill, 85 AD2d 826, 826). We
conclude that petitioner failed to meet that burden. Although
petitioner’s handwriting expert testified that the signature of
decedent on the marriage certificate was forged, the expert’s
testimony was thoroughly impeached on cross-examination, and the
Surrogate had ample reasons for rejecting the expert’s opinion. We
further conclude that, contrary to the contention of petitioner, the
Surrogate did not improperly limit her proof at the hearing.

     We agree with petitioner, however, that the court erred in
awarding fees to the Public Administrator and attorney’s fees to the
attorney for respondent. We therefore modify the order in appeal No.
1 by vacating the fees awarded to the Public Administrator and the
attorney’s fees awarded to the attorney for respondent, and we reverse
the order in appeal No. 2. In our view, petitioner did not engage in
frivolous conduct warranting the imposition of sanctions against her
pursuant to 22 NYCRR 130-1.1 (a). Inasmuch as decedent did not inform
her closest friends and relatives that she was married and filed her
taxes as a single person, petitioner had a good faith basis to
question whether decedent was married to respondent. Although her
challenge to the validity of the marriage certificate was
unsuccessful, petitioner also had a legitimate basis for believing
that her sister’s signature on the marriage certificate may have been
                               -3-                 1530
                                              CA 09-02324

forged.




Entered:   February 10, 2011         Patricia L. Morgan
                                     Clerk of the Court
