Guarino v. Lesser

• Decision Date: 03 December 1990
• Citation: 562 N.Y.S.2d 548,168 A.D.2d 424
• Parties: Susan GUARINO, et al., Appellants, v. Abraham LESSER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 548

562 N.Y.S.2d 548

168 A.D.2d 424

Susan GUARINO, et al., Appellants, v. Abraham LESSER, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 3, 1990.

Lazarowitz & Manganillo, P.C., Brooklyn, for appellants.

Sanders & Gutman, P.C., Brooklyn (Robert Gutman, of counsel, Jordan Brodie on the brief), for respondents.

Before MANGANO, P.J., and KUNZEMAN, KOOPER, SULLIVAN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action brought pursuant to EPTL 4[168 A.D.2d 425] -1.2(a)(2)(c), the plaintiffs appeal from an order of the Supreme Court, Kings County (Krausman, J.), dated April 14, 1989, which granted the defendants' motion for summary judgment.

ORDERED that the order is affirmed, without costs or disbursements.

It is undisputed that the decedent died prior to the effective date of the amendment to EPTL 4-1.2 which provides, inter alia, that children born out of wedlock are the legitimate children of their father for inheritance purposes. It is also undisputed that the plaintiffs, the decedent's children out of wedlock, were not eligible to share in the decedent's estate under the statute as it existed at the time of the decedent's death. As the amendment to this statute may be given prospective effect only, we agree with the Supreme Court that the plaintiffs are not entitled to share in the proceeds from the sale of their father's estate (see, Matter of Malavase, 133 A.D.2d 759, 520 N.Y.S.2d 49).

MANGANO, P.J., KUNZEMAN, KOOPER, SULLIVAN and RITTER, JJ., concur.