Cruz v. Hawley (In re Estate of Martirano)

• Citation: 172 A.D.3d 1610,102 N.Y.S.3d 120
• Decision Date: 09 May 2019
• Docket Number: 527734
• Court: New York Supreme Court Appellate Division
• Parties: In the MATTER OF the ESTATE OF Christopher M. MARTIRANO, Deceased. Nikko Cruz, as Executor of the Estate of Christopher M. Martirano, Deceased, Respondent; v. Michael A. Hawley, Appellant, and Linda Hawley, Respondent, et al., Respondents. (Proceeding No. 1.) (And Another Related Proceeding.) In the Matter of the Estate of Christopher M. Martirano, Deceased. Michael A. Hawley, Appellant; v. Linda Hawley, Respondent, et al., Respondents. (Proceeding No. 3.)

172 A.D.3d 1610
102 N.Y.S.3d 120

In the MATTER OF the ESTATE OF Christopher M. MARTIRANO, Deceased.

Nikko Cruz, as Executor of the Estate of Christopher M. Martirano, Deceased, Respondent;
v.
Michael A. Hawley, Appellant,
and
Linda Hawley, Respondent, et al., Respondents. (Proceeding No. 1.)

(And Another Related Proceeding.)

In the Matter of the Estate of Christopher M. Martirano, Deceased.

Michael A. Hawley, Appellant;
v.
Linda Hawley, Respondent, et al., Respondents. (Proceeding No. 3.)

527734

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 18, 2019
Decided and Entered: May 9, 2019

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

Blatchly & Simonson, New Paltz (Annette G. Hasapidis of counsel), for Linda Hawley, respondent.

Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

102 N.Y.S.3d 122

172 A.D.3d 1610

Christopher Martirano (hereinafter decedent) died in July 2014 at the age of 48. Decedent was not married, has no issue and was survived by, as relevant here, his mother, respondent Linda Hawley (hereinafter the mother), and his brother, Michael A. Hawley (hereinafter the brother).¹ Three days before his death, decedent executed a last will and testament that left the majority of his estate to petitioner Nikko Cruz and Dennis Helliwell, his friends and employees of his cleaning business.

172 A.D.3d 1611

In November 2014, Cruz, as executor,² filed a petition for probate (proceeding No. 1) and was granted preliminary letters testamentary.³ In April 2016, the brother filed objections to probate, which Cruz answered. The brother then filed a separate petition (proceeding No. 3) seeking a determination as to the proper intestate distributees of decedent's estate, arguing that the mother had failed to provide for and/or abandoned decedent as a child such that she is disqualified from receiving a distributive share of decedent's estate pursuant to EPTL 4–1.4(a)(1). Cruz then moved to dismiss the brother's objections to probate, claiming that the brother lacked standing because he was not named in the will or otherwise entitled to a distributive share of decedent's estate through intestacy, as the mother was still alive. The brother opposed Cruz's motion and cross-moved to stay any further proceedings with respect to his objections pending the outcome of his petition against the mother. The mother filed her answer to the brother's petition in July 2016.

In December 2016, Surrogate's Court (Work, S.) held that the dispositions to Helliwell and Cruz contained in decedent's last will and testament were void insofar as Helliwell and Cruz were the only attesting witnesses to the execution of the will (see EPTL 3–3.2[a][1] ) and, as such, said dispositions were to pass through intestacy (see EPTL 3–3.2[a][3][B] ). Surrogate's Court reserved decision on the pending standing issue, finding that probate of the will could not proceed without a decision on the brother's petition, as the brother's standing was contingent upon whether he could prove that the mother abandoned and/or failed to provide for decedent. Surrogate's Court then adjourned the matter pending discovery and a trial on the brother's petition.

Following a pretrial conference, Surrogate's Court (McGinty, S.) directed the brother to file a motion in limine with respect to the admissibility of various foreign records that were maintained by the

102 N.Y.S.3d 123

Catholic Welfare Bureau (hereinafter the CWB), a social service and foster care agency in Canada.

172 A.D.3d 1612

Following the parties' submissions, Surrogate's Court partially granted the brother's motion, by admitting certain documents subject to proper authentication as business records, and partially denied the motion by precluding other documents as unreliable hearsay. The mother thereafter moved and the brother cross-moved moved for summary judgment on the brother's petition. By order entered in April 2018, Supreme Court denied the brother's cross motion, determining that he had failed to meet his burden demonstrating that the mother voluntarily abandoned and/or failed to provide for decedent, and granted the mother's motion for summary judgment dismissing the petition, finding that she was qualified to inherit an intestate share of decedent's estate. Based on its holding, Surrogate's Court further determined that the brother lacked standing to challenge decedent's will and entered a decree to that effect. The brother now appeals from both the order and the decree.

On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact (see CPLR 3212 ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Matter of Clark , 119 A.D.2d 947, 948, 501 N.Y.S.2d 479 [1986] ). Only when a prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a triable issue of fact (see Alvarez v. Prospect Hosp. , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Davis v. EAB–TAB Enters. , 166 A.D.3d 1449, 1450, 88 N.Y.S.3d 302 [2018] ). As relevant here, EPTL 4–1.4(a) provides that "[n]o distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of [21] years ... has failed or refused to provide for the child or has abandoned such child" (see Matter of Ball , 24 A.D.3d 1062, 1062, 807 N.Y.S.2d 163 [2005] ; Matter of Arroyo , 273 A.D.2d 820, 820, 710 N.Y.S.2d 492 [2000], lv denied 95 N.Y.2d 763, 716 N.Y.S.2d 38, 739 N.E.2d 294 [2000] ). In determining whether a parent may be disqualified for failure to support, the key inquiry is "whether [the parent] had the means to support the child and failed to do so" ( Matter of Ball , 24 A.D.3d at 1063, 807 N.Y.S.2d 163 ; see Matter of Brennan , 169 A.D.2d 1000, 1000–1001, 565 N.Y.S.2d 277 [1991] ; see also Family Ct Act § 413 ). With regard to abandonment, "a parent may be disqualified under EPTL 4–1.4(a) if that parent [voluntarily] neglected or refused to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child" ( Matter of Ball , 24 A.D.3d at 1063, 807 N.Y.S.2d 163 [internal quotation marks, brackets and citations omitted]; see Matter of Pessoni , 11 Misc.3d 245, 246, 810 N.Y.S.2d 296 [Sur. Ct. 2005] ).

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