Alfieri, Matter of

Decision Date25 April 1994
PartiesIn the Matter of Santo ALFIERI, Deceased; Norma Alfieri, Appellant, Nina Licata, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Duane C. Felton, Staten Island, for appellant.

Moser & Moser, East Meadow (Stephen A. Moser, of counsel), for respondents.

Before MILLER, J.P., and LAWRENCE, ALTMAN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a discovery proceeding pursuant to SCPA 2103 to recover the assets of a decedent's estate, the petitioner appeals from a judgment of the Surrogate's Court, Richmond County (D'Arrigo, S.), dated March 24, 1992, which after a hearing, dismissed the petition.

ORDERED that the judgment is affirmed, with costs.

The evidence supports the finding of the Surrogate's Court that the decedent's acts were voluntary and not the result of fraud or undue influence. The transfer of the East River Savings Bank account to his sister was not illusory in nature (see, Krause v. Krause, 285 N.Y. 27, 32 N.E.2d 779; Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966). Even if the decedent violated the pendente lite order issued in a divorce action by transferring the bank account and changing the beneficiaries on his IRA accounts, that does not provide a basis for returning those assets to the estate. When he died, the matrimonial action abated and the appellant cannot obtain equitable distribution of marital assets in this proceeding (see, Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279). The Surrogate's Court properly determined that the petition could not be deemed a notice of election pursuant to EPTL 5-1.1(e) and that the appellant's request for an extension of time to exercise her right of election was untimely (see, Matter of Collins, 12 A.D.2d 307, 210 N.Y.S.2d 933; Matter of Brookes, 9 A.D.2d 927, 195 N.Y.S.2d 389, affd. 9 N.Y.2d 840, 216 N.Y.S.2d 88, 175 N.E.2d 457).

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6 cases
  • Adams v. Margulis
    • United States
    • New York Supreme Court — Appellate Division
    • 11 Febrero 2021
    ...see generally First Metlife Invs. Ins. Co. v. Filippino , 170 A.D.3d 672, 673-674, 93 N.Y.S.3d 594 [2d Dept. 2019] ; Matter of Alfieri , 203 A.D.2d 562, 563, 611 N.Y.S.2d 226 [2d Dept. 1994] ). Under these circumstances, we exercise our power to "search the record and grant summary judgment......
  • Bordas v. Bordas
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Diciembre 2015
    ...not entitle the parties to have a final judgment of divorce entered nunc pro tunc to the date of the stipulation (see Matter of Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226).The defendant's remaining contention is without merit (see id.).DILLON, J.P., DICKERSON, COHENand DUFFY, JJ., Davis v. D......
  • Forgione, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Marzo 1997
    ...no longer exists (see, e.g., Forgione v. Forgione, 231 A.D.2d 603, 647 N.Y.S.2d 811 [2d Dept., 1996]; see also, Matter of Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226; Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279). Although an exception to this rule exists where the court has made a f......
  • A.V.B. v. D.B.
    • United States
    • New York Supreme Court
    • 17 Abril 2014
    ...action abated and the appellant cannot obtain equitable distribution of marital assets in this proceeding.” Matter of Alfieri, 203 A.D.2d 562, 562–563, 611 N.Y.S.2d 226 [2nd Dept.1994], citing Sperber, supra. This Court finds that the divorce action abated upon Plaintiff's death, because th......
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