               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

669
CA 11-02273
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF THE PETITION OF DOROTHY E.
GRAY TO DETERMINE THE VALIDITY OF ELECTION
AGAINST THE LAST WILL AND TESTAMENT OF
DONALD J. GRAY, DECEASED.                                 MEMORANDUM AND ORDER
------------------------------------------
DOROTHY E. GRAY, PETITIONER-RESPONDENT;

ELSIE GARNSEY, RESPONDENT-APPELLANT.


HISCOCK & BARCLAY, LLP, SYRACUSE (KEVIN M. HAYDEN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (PETER L. WALTON OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from a decree of the Surrogate’s Court, Jefferson County
(Peter A. Schwerzmann, S.), entered June 14, 2011. The decree granted
the petition and deemed valid the notice of election executed by
petitioner.

     It is hereby ORDERED that the decree so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, the estranged wife of decedent,
commenced this proceeding, inter alia, to determine the validity of
her notice of election. Petitioner and decedent separated in the
1980s, and decedent thereafter began living with respondent, his
girlfriend, until his death in February 2008. In his will decedent
left the residuary estate to respondent, bequeathing to petitioner
only real property that he owned jointly with her. In June 2008,
approximately four months after decedent died but before letters of
administration were issued, petitioner’s attorney filed a notice of
election in Surrogate’s Court and served the notice upon Key Bank, the
executor named in decedent’s will. Key Bank, however, renounced its
appointment as executor and returned the notice to petitioner’s
attorney. The Surrogate’s Court Clerk also returned the notice of
election to petitioner’s attorney, explaining that an estate for
decedent had not yet been filed.

     In March 2009, letters of administration were issued to the son
of petitioner and decedent, and, according to petitioner, her son
agreed to serve as executor provided that there was no dispute
concerning the distribution of assets. Petitioner failed to re-file
her notice of election with the Surrogate or to serve it upon the
executor, nor did she seek an extension of time within which to do so.
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                                                         CA 11-02273

The attorney representing the estate also represented respondent, at
least initially, and there is no dispute that respondent and her
attorney had actual knowledge since June 2008 that petitioner sought
to exercise her right of election and had filed a premature notice of
election. In fact, respondent’s attorney engaged in detailed and
prolonged negotiations with the attorney for petitioner with respect
to the amount of her elective share. They eventually agreed upon a
specific amount, i.e., $398,970.62, and the attorney for respondent
informed petitioner’s attorney that respondent and the executor were
“getting the money together.” Despite assurances that the payment
would be forthcoming, petitioner never received her agreed-upon
elective share.

     In May 2010, respondent retained a new attorney and opposed
petitioner’s right to an elective share on the ground that petitioner
failed to file a notice of election within six months of the issuance
of letters of administration and no later than two years after the
date of decedent’s death, as required by EPTL 5-1.1-A (d) (1).
Petitioner thereafter commenced this proceeding seeking a decree
determining that her notice of election was valid. In support of her
petition, she submitted a detailed affidavit from her attorney, who
recounted all of the dealings with respondent’s former attorney, along
with letters from her attorney to respondent’s former attorney
corroborating the assertions in his affidavit. The attorney for
petitioner attributed his failure to re-file the notice of election to
the “numerous and oft-repeated representations and assurances” of
respondent’s former attorney that payment of the agreed-upon amount of
petitioner’s elective share was imminent.

     In opposition to the petition, respondent submitted an affidavit
from her subsequently retained attorney, who lacked personal knowledge
of the relevant facts. The parties thereafter agreed that the
Surrogate would base his decision solely on the papers submitted,
thereby waiving their right to an evidentiary hearing. The Surrogate
granted the petition, concluding that respondent was equitably
estopped from challenging the notice of election on timeliness
grounds. We affirm.

     We conclude that, although petitioner did not substantially
comply with the procedural requirements of EPTL 5-1.1-A inasmuch as
she failed to file her notice of election “within six months from the
date of the issuance of letters . . . of administration . . . but in
no event [no] later than two years after the date of decedent’s death”
(EPTL 5-1.1-A [d] [1]), the Surrogate properly applied the doctrine of
equitable estoppel to enable petitioner to assert her right to an
elective share. Petitioner submitted ample evidence demonstrating
that, as a result of numerous representations from the attorney
representing the estate and respondent that her elective share rights
would be honored, she was “lulled . . . into sleeping on [her] rights”
(Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981).
Contrary to respondent’s contention, petitioner also established that
the attorney with whom her attorney was negotiating represented
respondent as well as the estate. Notably, respondent offered no
evidence to rebut the allegations in the petition. She did not submit
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                                                         CA 11-02273

an affidavit from herself or the attorney whom petitioner asserts
represented her during the relevant time period, nor did she dispute
any of the allegations set forth in the affidavit of petitioner’s
attorney.

     We agree with respondent that the Surrogate erred in determining
that, for the doctrine of equitable estoppel to apply, petitioner was
not required to establish that respondent intended to lull her into
inactivity (see generally Zumpano v Quinn, 6 NY3d 666, 674; Philip F.
v Roman Catholic Diocese of Las Vegas, 70 AD3d 765, 766; Murphy v
Wegman’s Food Mkts., 140 AD2d 973, 974, lv denied 72 NY2d 808).
Nevertheless, we conclude that the record supports a finding of the
requisite intent on the part of respondent. Such a finding may be
inferred from the sworn allegations of petitioner’s attorney, which as
noted are not disputed by respondent. If respondent had not intended
to lull petitioner into inactivity, she could have set that forth in
an affidavit. We thus conclude that the Surrogate properly granted
the petition.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
