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

618
CA 11-02559
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


MICHELLE GALETTA, PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

GARY GALETTA, DEFENDANT-RESPONDENT.


BARNEY & AFFRONTI, LLP, ROCHESTER (FRANCIS C. AFFRONTI OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

STEPHEN M. LEONARDO, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John M.
Owens, J.), entered September 28, 2011. The order, among other
things, denied plaintiff’s motion for summary judgment.

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

     Memorandum: After plaintiff commenced this divorce action, she
moved for, inter alia, summary judgment determining that the parties’
prenuptial agreement is invalid because it was not properly
acknowledged. Contrary to plaintiff’s contention, Supreme Court
properly denied that part of her motion. Pursuant to Domestic
Relations Law § 236 (B) (3), “[a]n agreement by the parties, made
before or during the marriage, shall be valid and enforceable in a
matrimonial action if such agreement is in writing, subscribed by the
parties, and acknowledged or proven in the manner required to entitle
a deed to be recorded.” In order to satisfy the acknowledgment
requirement, “there must be an oral acknowledgment before an
authorized officer, and a written certificate of acknowledgment must
be attached to the agreement” (Filkins v Filkins [appeal No. 3], 303
AD2d 934, 934; see Matisoff v Dobi, 90 NY2d 127, 137-138; see
generally Real Property Law §§ 291, 306).

     We agree with plaintiff that the written certificate of
acknowledgment is insufficient because it does not contain the
information required by Real Property Law § 303, i.e., that the person
taking the acknowledgment “knows or has satisfactory evidence, that
the person making it is the person described in and who executed such
instrument.” Contrary to defendant’s contention, the certificate was
not in “substantial compliance” with the statute, and thus the court’s
reliance on Weinstein v Weinstein (36 AD3d 797, 798) for that
proposition was misplaced. In Weinstein, the language in the
certificate failed to conform to the “precise language” of the Real
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                                                         CA 11-02559

Property Law (id.). Here, however, the certificate fails to “stat[e]
all the matters required to be done, known, or proved on the taking of
such acknowledgment or proof” (§ 306). Inasmuch as the certificate is
devoid of information required by the Real Property Law, we conclude
that it is insufficient on its face and does not establish that the
prenuptial agreement was properly acknowledged (see generally Fryer v
Rockefeller, 63 NY 268, 272-273; Garguilio v Garguilio, 122 AD2d 105,
106; Gross v Rowley, 147 App Div 529, 531-532).

     We agree with defendant that a subsequently-filed affidavit from
the notary who took defendant’s acknowledgment raises a triable issue
of fact whether the prenuptial agreement was properly acknowledged.
Although the dissent correctly notes that defendant does not
specifically contend in his brief on appeal that the affidavit cured
the defect, we conclude that such a contention is implicit in
defendant’s submission of the notary’s affidavit, the only purpose of
which was to cure the defect, i.e., to supply the information missing
from the contemporaneously-executed acknowledgment. In addition,
defendant’s attorney raised that contention at oral argument of this
appeal. The issue squarely before us is thus whether defects in such
an acknowledgment are subject to cure. We conclude that they are.

     In Matisoff (90 NY2d at 137), the Court of Appeals specifically
declined to resolve the issue “whether and under what circumstances
the absence of acknowledgment can be cured,” and noted that other
courts have been divided on the issue. It is well settled that
defects in an acknowledgment required by EPTL 5–1.1–A (e) (2) (see
EPTL 5–1.1 [f] [2]), concerning waivers of the spousal right of
election, may be cured (see Matisoff, 90 NY2d at 137; Matter of Maul,
176 Misc 170, 174, affd 262 App Div 941, affd 287 NY 694; Matter of
Saperstein, 254 AD2d 88, 88-89; see generally Rogers v Pell, 154 NY
518, 530-531). Inasmuch as the language of the EPTL contains the same
“restrictive acknowledgment language as the Domestic Relations Law
under discussion in the Matisoff case” (D’Agrosa v Coniglio, 12 Misc
3d 1179[A], 2006 NY Slip Op 51305[U], at *3), we conclude that the
same reasoning should apply to Domestic Relations Law § 236 (B) (3)
and that defects in the acknowledgment required by that section may be
cured.

     We recognize that there is a split of authority on the issue
whether such defects may be cured, and this Court has yet to take a
position. In Arizin v Covello (175 Misc 2d 453, 457), the court held
that “an unacknowledged nuptial agreement which is acknowledged on a
subsequent date is enforceable in a matrimonial action as long as the
subsequent acknowledgment complies with the statutory requirements of
Domestic Relations Law § 236 (B) (3)” (see also Hurley v Johnson, 4
Misc 3d 616, 620). We cited to Arizin in our decision in Filkins (303
AD2d at 934). In Filkins, however, there was no written certificate
of acknowledgment attached to the parties’ prenuptial agreement, and
we held that “plaintiff’s attempt to cure the defect by having the
agreement notarized and filed after commencement of [the] divorce
action fail[ed] because the agreement was never reacknowledged in
compliance with Domestic Relations Law § 236 (B) (3)” (id. at 934-
935). By citing to Arizin, we implicitly endorsed the possibility
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                                                         CA 11-02559

that a defect in a technically improper acknowledgment accompanying a
nuptial agreement could be cured (see id. at 935).

     We recognize that the Second Department in D’Elia v D’Elia (14
AD3d 477, 478) held that the defendant’s “attempt to cure the
acknowledgment defect by submitting a duly-executed certificate of
acknowledgment at trial was not sufficient,” but it is not clear from
that decision whether there was a contemporaneous acknowledgment that
was technically improper. We also recognize that the First Department
in Anonymous v Anonymous (253 AD2d 696, 697, lv dismissed 93 NY2d 888)
“would not permit [the] defendant to cure [the] defect in the
[prenuptial] agreement by an alleged acknowledgment in affidavit form
which was executed and which surfaced some 12 years after the fact in
the midst of a contested matrimonial action in light of the required
formalities of Domestic Relations Law § 236 (B) (3).” Inasmuch as the
preamble to the decision in Anonymous refers to “the absence of an
acknowledgment” (id.), our decision herein is not inconsistent with
that of the Second Department. Here, defendant is not attempting to
cure the complete absence of a contemporaneous acknowledgment.
Rather, he is attempting to submit evidence that there was, in fact, a
proper and contemporaneous acknowledgment at the time the prenuptial
agreement was executed. In our view, the affidavit from the notary
who took defendant’s acknowledgment is sufficient to raise a triable
issue of fact whether “the parties . . . contemporaneously
demonstrated the deliberate nature of their agreement” (Schoeman,
Marsh & Updike v Dobi, 264 AD2d 572, 573, lv dismissed 94 NY2d 944, 97
NY2d 721, lv denied 100 NY2d 508; cf. Leighton v Leighton, 46 AD3d
264, 265, appeal dismissed 10 NY3d 739). The statements of the
notary, i.e., that it was his usual and customary practice to ask and
confirm that the person signing the document was the same person named
in the document and that he or she was signing said document,
“constitute competent and admissible evidence concerning routine
professional practice sufficient to raise a triable issue of fact”
(Gier v CGF Health Sys., 307 AD2d 729, 730; see generally Halloran v
Virginia Chems., 41 NY2d 386, 389). We thus conclude that the court
properly denied that part of plaintiff’s motion for summary judgment
seeking a determination as a matter of law that the parties’
prenuptial agreement is invalid.

     All concur except CENTRA and CARNI, JJ., who dissent and vote to
modify in accordance with the following Memorandum: We respectfully
dissent and would modify the order by granting plaintiff’s motion to
the extent that it seeks summary judgment determining that the
parties’ prenuptial agreement is invalid and unenforceable. We agree
with the majority that the prenuptial agreement was not properly
acknowledged because the certificate of acknowledgment of defendant’s
signature on the prenuptial agreement does not contain the information
required by Real Property Law § 303, i.e., that the person taking the
acknowledgment “knows or has satisfactory evidence[] that the person
making it is the person described in and who executed such
instrument.” We disagree with the majority, however, that defendant
raised a triable issue of fact sufficient to defeat the motion. In
opposition to the motion, defendant submitted the affidavit of the
notary who took defendant’s acknowledgment of the prenuptial
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                                                         CA 11-02559

agreement. On appeal, defendant contends that the notary’s affidavit
“reaffirmed” that the acknowledgment was valid. We reject that
contention because, as explained above, the certificate of
acknowledgment was defective on its face and thus was not valid in the
first instance. Defendant does not contend in the alternative that,
if the acknowledgment was defective, the notary’s affidavit cured the
defect. Thus, unlike the majority, we would not reach that issue
because it is not before us.

     In any event, we write to note our disagreement with the majority
that a defect in an acknowledgment may be cured (see D’Elia v D’Elia,
14 AD3d 477, 478; see generally Filkins v Filkins [appeal No. 3], 303
AD2d 934, 934-935). Furthermore, “[e]ven assuming . . . that the
requisite acknowledgment could be supplied” at a later time and is not
required to be made contemporaneous with the signing of the prenuptial
agreement, we conclude that the notary’s affidavit does not establish
the proper acknowledgment or even raise a triable issue of fact
(Matisoff v Dobi, 90 NY2d 127, 137). The notary averred that “[i]t
was then, and has always been, my custom and practice when taking an
acknowledgment to ask and confirm that the person signing the document
was the same person named in the document and that he or she was
signing said document. I am confident I followed the same procedure
when I took [defendant’s] acknowledgment on” the prenuptial agreement.
That affidavit is insufficient to raise an issue of fact whether the
notary “kn[ew] or ha[d] satisfactory evidence[] that the person making
[the acknowledgment] is the person described in and who executed” the
prenuptial agreement (Real Property Law § 303 [emphasis added]).
Stated differently, there was no “identity of the person making the
acknowledgment with the person described in the instrument and the
person who executed the same” (Gross v Rowley, 147 App Div 529, 531).




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