Opinion
322635.
Decided September 30, 2005.
Ralph Hockberg, Esq. (counsel to adult children) Platzer Swergold Karlin Levine Goldberg Jaslow, New York, NY.
Marc Pergament, Esq. (counsel to Executor/Petitioner) Weinberg Gross Pergament Garden City, NY.
Vincent Farrell, Esq. (counsel to Thomas Rice, Esq.) Farrell Farrell Burke, Mineola, NY.
Thomas A. Williams, Esq. (Guardian Ad Litem for John Joseph Seviroli, Valley Stream, NY.
Thomas Rice, Esq. (Counsel for Respondent Maria Seviroli) Albanese Albanese, Garden City, NY.
This is a proceeding by the executrix to determine the validity of a notice of right of election filed by the decedent's surviving spouse Maria Seviroli (SCPA 1421). Joseph Seviroli died in February of 2002, survived by his spouse Maria Seviroli, his infant son John Joseph Seviroli and his two adult children by a prior marriage, Joseph Seviroli Jr. and Maria Beau. His Will was admitted to probate by this court on July 8, 2002; letters testamentary issued to the nominated executrix, the decedent's sister, on that date. The issue before the court concerns the enforceability of an alleged prenuptial agreement executed by decedent and Mrs. Seviroli which contains a waiver of her spousal right of election (EPTL 5-1.1-A[e]).
Mrs. Seviroli served an answer in which she set forth affirmative defenses to the petition which state, inter alia, that she was pregnant at the time of the execution of the instrument, a woman of no wealth and modest means, emotionally fragile due to a prior miscarriage, a non-citizen immigrant from Colombia who arrived in the US in 1991 unable to speak, read, or write English, unfamiliar with the cultural traditions and the laws of the United States, unsophisticated and inexperienced in business, who, based upon the decedent's insistent importunings and repeated assurances and his overmastering influence, executed the document without the effective assistance of counsel. Thereafter the parties engaged in extensive discovery including the multi-day examinations of the respondent and both attorneys who advised her in the negotiation and execution of the prenuptial agreement. The executrix now moves for summary judgment dismissing Mrs. Seviroli's notice of election; Mrs. Seviroli cross moves for summary judgment on several grounds, primarily that the prenuptial agreement is unenforceable due to lack of proper acknowledgment.
The executrix contends that by the evidence presented she has made a prima facie showing of entitlement to judgment as a matter of law and that the burden has shifted to respondent as the party opposing the motion to present evidence demonstrating the existence of a material issue of fact. The executrix relies upon Matter of Greiff ( 92 NY2d 341) for the proposition that a person challenging the validity of a waiver of a right of election must demonstrate, by a preponderance of the evidence, that the premarital relationship between the challenging surviving spouse and the decedent manifests probable undue and unfair advantage.
The executrix further argues that the surviving spouse bears the responsibility to establish that the waiver procured in the prenuptial agreement was the product of fraud, overreaching or duress ( Panossian v. Panossian, 172 AD2d 811). She argues that the evidence and testimony of the respondent does not support the claim that Mrs. Seviroli was not advised of the terms of the prenuptial agreement, that she failed to comprehend it, or that she entered into it unwillingly as a product of fraud or duress ( Matter of Davis, 20 NY2d 70). Citing Greiff, Matter of Rappaport ( 184 Misc 2d 660) and Matter of Buzen (NYLJ, April 2, 1999 at 35, col 1), the executrix claims that there was no detrimental reliance on Joseph Seviroli by Maria Seviroli in that she did not give up family, friends, assets or career objectives to marry him. The executrix concedes that there was a major difference in the financial position of the parties but argues that this is not enough, standing alone, to invalidate the agreement. There was no evidence that Maria Seviroli was suffering from any physical or mental condition that would impair her understanding of the agreement, nor was there evidence of any persistent demands or assurances by Mr. Seviroli. The executrix points out that the parties had separate counsel, the agreement was reasonably proposed, and while there was no execution ceremony, Mrs. Seviroli and her attorney had several weeks to negotiate it. Although Mr. Seviroli was older and an experienced businessman, there is evidence that Mrs. Seviroli also had some business sophistication and that she had left him for a period of time before their marriage and had acted independently. Additionally, both of Mrs. Seviroli's attorneys fully advised her of the salient issues in the prenuptial agreement and, in fact, both advised her not to sign it. Accordingly, the executrix contends there has been no showing of fraud in this case and that fraud cannot be presumed ( Matter of Sunshine, 51 AD2d 326, 328 aff'd 40 NY2d 875). Furthermore, she contends there has been no proof that the decedent misrepresented his assets or that respondent did not understand the document when she signed it.
Finally, the executrix argues there has been no showing of duress and that a claim that the deceased spouse would not marry if the agreement was not executed is insufficient to establish duress ( Matter of Heric, 175 Misc 2d 601).
In reply to the executrix's motion the surviving spouse submits the affirmation of her attorney and the affidavit of a psychologist, Dawn M. Hughes, Ph. D., (hereinafter referred to as "the Hughes affidavit"). The spouse also submits the minutes of the examination before trial of her attorney, Annette Rodriguez-Soriano.
The Hughes affidavit asserts that Mr. Seviroli wielded overmastering influence over Mrs. Seviroli at the time she signed the prenuptial agreement. This was allegedly consistent with a pattern of economic, emotional and sexually coercive behavior. The basis of Dr. Hughes opinion are two interviews with Mrs. Seviroli in November of 2004 and review of the motion papers, the transcripts of the pretrial depositions, copies of Mrs. Seviroli's February 26, 2000 hospital records and a copy of the petition in the so-called "omnibus" proceeding commenced by Mrs. Seviroli. Counsel argues that the deposition testimony of Ms. Soriano is consistent with the Hughes opinion in that she testified that Maria Seviroli had "the demeanor of someone who was being controlled . . . almost like being programmed or . . . afraid to do something on their own," "he would tell her to do something and she would jump. She was very compliant, very submissive to him."
Mrs. Seviroli's counsel argues that she has met her burden of showing a fact-based particularized inequality in the relationship between her and Mr. Seviroli and that the burden of persuasion has now shifted to the estate to disprove fraud, overreaching, or undue influence ( Matter of Greiff, 92 NY2d 341, 345). This fact based particularized inequality or threshold burden must be met by a fair preponderance of the credible evidence ( Matter of Buzen, NYLJ, April 2, 1999 at 35, col. 1). The respondent contends that the evidence establishes
Mr. Seviroli's superior knowledge and ability as well as his overmastering influence in that he treated her like a servant, made her ask for money, did not share information and access to family income with her, threatened to leave her if she refused to perform a particularly degrading act in his presence, required her to have plastic surgery on her nose and suggested plastic surgery on her breasts and buttocks, required her not to smoke, directed how she wore her hair and nails, picked out and bought her clothes, directed what she would wear and refused to pay the medical costs of her February 2000 miscarriage of their child.
Mrs. Seviroli additionally relies upon the testimony of her then attorney, Ms. Soriano, that Mrs. Seviroli had to sign the agreement right away because Mr. Seviroli would not marry her without it. It is alleged that there was an absence of full disclosure of assets in that there was no financial disclosure attached to the prenuptial agreement, her attorney never having received or reviewed any financial disclosure before Mrs. Seviroli executed the agreement. The three pages of financial disclosure were initialed by Maria Seviroli after she signed the agreement and were allegedly never reviewed with her attorney. She also argues that the absence of a formal execution ceremony caused the failure of full disclosure of assets as an essential prerequisite to a knowing waiver. Counsel also asserts there is evidence of detrimental reliance on Mr. Seviroli by his then fiancée in that, according to her testimony, he assured her that he would take care of her and their unborn child. Counsel also argues that given the disparity of their ages, Mr. Seviroli's health, and the pending birth of the child, the agreement was unconscionable and unreasonable on its face. The evidence shows that Mr. Seviroli never executed a testamentary instrument that provided for his son or widow as required by the prenuptial agreement. In sum, Mrs. Seviroli claims all of this evidence establishes the fact based particularized unequality that shifts the burden to the executrix to prove the agreement was free from fraud, deception or undue influence.
Alternatively, the surviving spouse argues that summary judgment should be denied because she has not been able to marshal evidence, nor had the opportunity to conduct adequate discovery. Mrs. Seviroli claims to need discovery of the decedent's sister, the executrix, her husband, decedent's brother and his wife, the adult children, and decedent's first wife and prior girlfriend as non-party witnesses. It is claimed that this evidence will support Mrs. Seviroli's theory of the controlling and dominating personality of her deceased spouse.
With respect to the shifting burden of persuasion, the executrix points out that if the challenging spouse does not make out a fact based particularized unequality to demonstrate alleged undue influence and unfair advantage, the burden does not shift ( Matter of Rappaport, 184 Misc 2d 660, 662). Alleging that there was no fraud shown in the execution of this document nor was there any undue influence shown, the burden has not shifted ( Matter of Sunshine, 51 AD2d 326 aff'd 40 NY2d 875). Counsel for the adult children also submits an unsworn report of another psychiatrist, Dr. Edwin F. Campbell. Dr. Campbell submits that Dr. Hughes's conclusions have no scientific basis, lack objectivity and rest on a foundation of flawed logic. Counsel argues there are numerous factual inaccuracies in the Hughes affidavit for which there is no support in the record.
BURDEN OF PROOF/BURDEN OF PERSUASION
As indicated above, the respondent has moved for partial summary judgment, contending there has been a shift of the burden of proof by her making the preliminary showing required by Matter of Grieff ( 92 NY2d 341, 343). In opposition, the estate argues that respondent has not met her burden of demonstrating by a preponderance of the evidence that the premarital relationship between the parties manifests probable undue and unfair advantage ( Matter of Grieff, 92 NY2d 341, 343).
On the other hand, the executrix has also argued traditional concepts of summary judgment practice. The moving party bears the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case ( Winegrad v. NYU Medical Ctr., 64 NY2d 851). After the moving party makes the appropriate showing, the burden then shifts to the opposing party to produce evidence demonstrating the existence of material issues of facts, mere conclusions, expressions of hope or unsubstantiated allegations being insufficient ( City of New York v. Zuckerman, 49 NY2d 557). Repeatedly, the courts have said that summary judgment involves issue finding rather than issue determination ( Schultz v. Esposito, 210 AD2d 307). The court must deem the allegations made in the pleadings and the affidavits to be true, should not determine credibility, and merely determine whether there is a genuine issue of fact ( S.J. Capelin Associates v. Globe Mfg. Corp., 34 NY2d 338). Although the court must evaluate whether the alleged factual issues presented are genuine, the matter should be resolved summarily only when the contrary facts are unsubstantiated ( Andrew v. Pomeroy, 35 NY2d 361). This court is of the view that these concepts are validly applicable in the context of a challenge to a prenuptial agreement. Nothing in Matter of Grieff ( 92 NY2d 341) suggests that ordinary summary judgment practice, the burden of making a prima facie showing and the contrasting burden to produce evidence of issues of fact have been modified. The court in Grieff is careful to state the issue before it as "whether the special relationship between betrothed parties . . . can warrant a shift in the burden of persuasion bearing on . . . [the] legality and enforceability [of a prenuptial agreement]" ( Matter of Grieff, 92 NY2d 341 at 343). The Court of Appeals emphasized that the question before it was the shifting of the burden of persuasion, not the burden of proof. It noted that the burden of proof is still on the party seeking to vitiate a prenuptial contract on the grounds of fraud ( Matter of Sunshine, 40 NY2d 875). The court simply held that in contracts where parties to an agreement find themselves in a relationship of trust, a special burden may be shifted to the party in whom trust is reposed to disprove fraud or overreaching ( Matter of Grieff, 92 NY2d 341 at 345). The court went on to set forth the standard or test under which the shift in the ultimate burden of persuasion may occur in these cases. One commentator has suggested that the court's reference to a "preponderance of evidence" "resonates" with the sort of showing that must be made to defeat a motion for summary judgment ( Florescue, Enforcement of Prenuptial Agreement, NYLJ Nov. 9, 1998 at 3, col 1). But preponderance of the evidence is a standard of proof usually reserved for ultimate factual determinations and again, the court never discussed a shifting of the burden of proof, merely the ultimate burden of persuasion. It is important to note that all of these cases ( Grieff, 92 NY2d at 345; Buzen, NYLJ April 2, 1999 at 35, col 1; Matter of Rappaport, 184 Misc 2d 660) were determinations made after trial. No case cited or relied upon by any of the parties in this matter concerns a court's determination on a motion for summary judgment, all are analysis of the facts developed after trial.
Accordingly, the motion for partial summary judgment declaring that the burden of persuasion has shifted to the estate must be denied. That determination is made by the trier of fact. "The burden of persuasion becomes relevant after all the evidence has been presented. The trier of fact weighs the quality of evidence on an issue, keeping in mind which party has the burden of persuasion with respect to that issue. The party with the burden of persuasion runs the risk of non-persuasion of the trier of fact . . ." (Prince, Richardson on Evidence § 3-201 [Farrell 11th ed], quoting Caltabiano v. NYS Employee Retirement Sys., 135 AD2d 113, 115-116). This of course does not mean that if there is a trial, that the surviving spouse will meet her burden of persuasion and shift to the executrix the special burden to disprove fraud and undue influence. As the court said in Matter of Grieff, "the burden shift is neither presumptively applicable nor precluded" ( 92 NY2d at 346).
Thus, the general principles of summary judgment practice are the tests by which these motions should be determined. On the other hand, the factors for consideration set forth in Grieff and its progeny are certainly the issues before the court. Whether there has been a showing that there are factual issues concerning all or some of these factors is the court's present inquiry.
ALLEGED FACTUAL ISSUES
Some of the relevant factors in determining whether a particularized inequality existed which manifest a probable unfair advantage are as follows:
— detrimental reliance on the part of the poorer spouse
— substantial financial inequality between the parties
— the presence or absence of a formal execution ceremony
— full disclosure of assets as a prerequisite to a knowing waiver
— the physical or mental condition of the objecting spouse at the time of execution
— possible superior knowledge and overmastering influence on the part of the proponent of the agreement
— the presence of separate, effective independent counsel for each party
— the circumstances in which the agreement was proposed, and whether it was fair and reasonable on its face
— provisions for the poorer spouse in the Will ( Matter of Buzen, NYLJ, April 2, 1999 at 25, col 6).
There are no factual disputes about some of these factors. For example, there is no question of the substantial financial inequality between the parties, that there was no formal execution ceremony, that each party had separate independent counsel and that there were no provisions for the poorer spouse and her child in the Will admitted to probate.
On the other hand, the deposition testimony of Maria Seviroli, Mrs. Seviroli's first attorney, Beatrice Kobayshi, and Mrs. Seviroli's second attorney, Annette Soriano raises factual issues of whether the surviving spouse detrimentally relied on the representations of the decedent that she and the child would be taken care of despite the prenuptial waivers. A factual issue exists as to whether the belated disclosure of assets of Joseph Seviroli, despite the purported reading of his financial disclosure to Mrs. Seviroli by Beatrice Kobayshi and her own broad knowledge of his assets, constituted a knowing waiver of her right of election. There are also factual issues with respect to the physical and mental condition of Mrs. Seviroli at the time of execution, for example, how she was affected by her miscarriage and the fact that she, either willingly or under duress, went out to dinner the night she was released from the hospital. The court notes that the executrix argues it is preposterous for Dr. Hughes to opine on the respondent's state of mind four years after the event. The executrix also points out that the Hughes affidavit ignores Mrs. Seviroli's deposition testimony which was given without coercion or duress and ignores the fact that Mrs. Seviroli left the decedent when she discovered he was seeing another woman, which the executrix claims undermines Dr. Hughes's claim of overmastering influence. Without crediting all of Dr. Hughes's conclusions about Mrs. Seviroli's mental condition in October 2000, some of her conclusions are based upon testimony in the record from Mrs. Seviroli and Ms. Soriano. Certainly Ms. Soriano's observations of Mrs. Seviroli at the time, and the undenied degrading act that Joseph Seviroli exacted as an engagement consideration, suggest that Dr. Hughes's opinion is not without some evidentiary foundation. As the Court of Appeals held in Diaz v. NY Downtown Hospital ( 99 NY2d 542), ordinarily the opinion of a qualified expert on the issues would preclude granting summary judgment ( Murphy v. O'Connor, 84 NY2d 969). But, where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation the opinion should be given no probative value and is insufficient to withstand summary judgment ( S.J. Romano v. Stanley, 90 NY2d 444). Here, Dr. Hughes's opinion is supported by some evidentiary foundation. Whether it is credible, is an issue for a trial.
There are additional factual issues concerning whether Joseph Seviroli had superior knowledge and whether in the final analysis he had overmastering influence over his fiancée. There are contrary inferences that might be drawn from his business acumen and her business experience as well as from her demeanor and an appreciation by a fact finder of the degree of her comprehension and understanding of the English language. Overmastering influence is simply a factor not readily determined in a summary manner. Whether both counsel for Maria Seviroli were truly effective is subject to some question, considering the fact that the agreement was admittedly executed without the decedent's financial disclosure attached to the document, without counsel's having reviewed it with the client, and without counsel's knowledge of its import.
In the final analysis and applying traditional general principles of summary judgment jurisprudence, the executrix on her motion for summary judgment has not met her initial burden of showing entitlement to relief as a matter of law and the respondent has tendered evidence sufficient to create material issues of fact. Similarly the cross-motion for summary relief on the grounds of the absence of full financial disclosure and unconsionability has not been established as a matter of law and, in any event, the executrix has shown that factual issues exist and questions of conflicting inferences are to be drawn from those facts. Thus, the motion for summary judgment is denied and the cross-motion for summary judgment on these grounds is also denied.
With respect to respondent's demand for further discovery, counsel are directed to appear for a conference on October 27, 2005 at 9:30 a.m. to schedule such other discovery as is appropriate and a date for trial.
CROSS MOTION BASED UPON WANT OF ACKNOWLEDGMENT
The respondent, Maria Seviroli, has cross-moved for summary judgment on several grounds which primarily relate to her contention that the prenuptial agreement was not duly acknowledged. EPTL 5-1.1-A(e)(2) provides that:
"To be effective under this section, a waiver or release [of a right of election] must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the conveyance of real property."
Respondent's first ground for summary relief is that the petition fails to state a cause of action because the petition does not plead that the purported prenuptial agreement, which contains a waiver of respondent's right to elect against decedent's will, was either acknowledged or proven as required by the above statute (CPLR 3211(c); CPLR 3211[a][7]). It merely pleads that Maria Seviroli executed the agreement.
In opposition, the petitioner-executrix requests that the court permit the pleading to be amended upon such terms as may be just (CPLR 3025). Petitioner requests that the court deem her verified petition amended to include an allegation that the prenuptial agreement was duly acknowledged.
The court notes that the CPLR, which applies where the SCPA is silent, requires that leave to amend a pleading be freely given particularly where no prejudice to the respondent is shown (CPLR 3025[b]; Matter of Allan, 5 NY2d 333; Matter of Marshie, 65 AD2d 917; see generally 40 NY Jur 2d, Decedent's Estates § 1181). In these circumstances, no prejudice having been shown, the petition is deemed amended to allege that the prenuptial agreement was duly acknowledged.
Respondent's second ground for summary judgment in her favor is that the agreement was neither acknowledged nor witnessed so as to enable it to be proved, and is therefore invalid and the purported waiver of her right of election unenforceable. There are two parts to an acknowledgment: the oral declaration of the subscriber of the document to the officer before whom it is made, and the certificate of the officer, generally a notary ( Matisoff v. Dobi, 90 NY2d 127; Rogers v. Pell, 154 NY 518, 529; Detmer v. Detmer, 248 AD2d 582; Garguilio v. Garguilio, 122 AD2d 105, 106). Mrs. Seviroli asserts that her denial that she made an oral declaration and the failure of the attorney/notary to recall such an oral declaration of acknowledgment establishes as a matter of fact that at no time did Mrs. Seviroli acknowledge the signature on the agreement to be hers, thus making it an invalid and unenforceable waiver of her right of election. Respondent also argues that there is a statutory impediment to the notary now supplying the necessary proof after subscription of the document as a subscribing witness (Real Property Law § 292).
The proof submitted on the motion shows that on page 16 of the contested prenuptial agreement, Maria Del Pilar Arbelaez, now Maria Seviroli, signed the agreement. It also shows that on page 17 of the agreement Annette Rodriquez-Soriano, respondent's then attorney, acted as a notary public and the officer taking the acknowledgment and she executed a certificate of acknowledgment which reads as follows:
"STATE OF NEW YORK) SS. COUNTY OF NASSAU)
On the 3rd (handwritten) day of OCTOBER in the year 2000, before me, the undersigned, personally appeared MARIA DEL PILAR ARBELAEZ, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
(signed) Annette Rodriguez-Soriano Notary Public (stamp)ANNETTE RODRIGUEZ-SORIANO NOTARY PUBLIC, State of New York No. 01505048446 Qualified in Queens County Commission Expries 8/21/01
Ms. Soriano testified at her deposition that she probably did not ask Mrs. Seviroli if "this is your signature." She did not remember if Mrs. Seviroli said "this is my signature" and she did not remember if she asked Mrs. Seviroli if "this is your signature." Mrs. Seviroli has provided an affidavit in which she states, consistent with her deposition testimony, that on October 3, 2000, the date she signed page 16 of the agreement, the only people present were Ms. Soriano and herself. Mrs. Seviroli further swears that "at that time I did not orally declare that anything I may have written was my signature (and) . . . at that time my attorney, Annette Soriano, did not at any time, in any manner, ask me if anything I may have written was my signature." Her affidavit further states that she has not heretofore acknowledged, does not now and will not in the future acknowledge that anything she wrote on October 3, 2000 was her signature.
However, Maria Seviroli testified at her deposition that she signed the prenuptial agreement on October 3, 2000 before her attorney, Ms. Soriano and no other person was present.
In opposition to the cross-motion for summary judgment by Mrs. Seviroli, counsel for decedent's adult children submitted an additional affidavit of Ms. Soriano dated December 30, 2004 ( see Exhibit A to Affirmation of Ralph Hochberg in Opposition to the Cross-Motion). In paragraphs 3 and 4 of that affidavit, Annette Soriano states:
"3. After the negotiations with counsel for Mr. Seviroli concluded and the agreement was finalized, Maria appeared in my office on October 3, 2000 to sign the Prenuptial Agreement. She was in a hurry to sign but I reviewed the terms of the revised agreement with her. She said she wanted to sign it and was in a rush to do so. As I opened to the signature pages I reminded her that I had advised her not to sign the agreement because of what she was giving up. She told me she did not care and was signing it anyhow. She immediately signed the document in my presence and I completed the certificate of acknowledgment. The executed and acknowledged documents were then sent to counsel for Mr. Seviroli.
4.I am aware that Maria Seviroli is now claiming that she never orally 'acknowledged' that she was signing the Prenuptial Agreement. That is not the case and unrealistic. I have given this matter a lot of thought and am comfortable that matters transpired as set forth herein."
The executrix asserts that despite Ms. Soriano's failure of recollection at her deposition, the prenuptial agreement complies with EPTL 5-1.1-A(e)(2). The executrix claims that the uncontroverted evidence shows that the acknowledgment was taken by an officer who knew or had satisfactory evidence that the person making the acknowledgment was the person described in the instrument and who executed it (Real Property Law § 303).
The executrix further relies upon a decision of this court wherein the court discussed the requirements of an oral acknowledgment and the court took a "common sense" approach to the ceremonial format of how the signatory orally states that he or she signed the document ( Matter of Cerrito, NYLJ, June 12, 1995, at 36, col 6). Additionally, the executrix argues that the respondent has acknowledged that it was her signature on the document by her deposition testimony that she signed the prenuptial agreement in the presence of her attorney. The executrix further distinguishes the Court of Appeals case of Matisoff v. Dobi ( 90 NY2d 127) relied upon by the respondent by the presence in this case of the certificate of acknowledgment, which was lacking in Matisoff, and the alleged acknowledgment by respondent of her signature during her depositions.
Counsel for decedent's adult children claims that Ms. Soriano's affidavit proves that Mrs. Seviroli told Ms. Soriano that she was signing the agreement notwithstanding advice to the contrary. Counsel argues that Mrs. Seviroli's oral statement that she was signing the agreement in face of and despite advice of counsel to the contrary satisfies the requirement of an oral declaration. The adult children argue that any other result would lead to thousands of agreement and deeds being declared invalid because the attorney did not specifically ask the client if the signature was that of the client or the client did not specifically orally confirm an event personally witnessed by the attorney-notary.
Counsel for Mrs. Seviroli in reply argues that counsel for the executrix and the adult children misperceive the necessity to comply with statutory formalities. With the offer of the Soriano affidavit, counsel now argues there are irrefutably no issues of fact because Ms. Soriano does not state that Mrs. Seviroli orally acknowledged the instrument she had executed. Therefore, any presumption of regularity attaching to Ms. Soriano's certificate of acknowledgment has now been rebutted, argues counsel for respondent. Finally, counsel argues that the "common sense" approach adopted by this court in Matter of Cerrito (NYLJ, June 12, 1995 at 36, col 6), is without precedential value. Relying on Matisoff v. Dobi ( 90 NY2d 127), Mrs. Seviroli argues that the Court of Appeals has clearly held that a valid acknowledgment requires that any oral acknowledgment be made before an authorized officer, that the statutory requirements must be strictly adhered to and the court's attempt in Matter of Cerrito, (NYLJ, June 12, 1995 at 36, col 6) and Matter of Felicetti (NYLJ January 22, 1998 at 31, col 3) are an ineffective attempt to craft an end run around the statutes. Simply put, she argues that a post-execution oral declaration is indispensable to the validity and enforceability of a prenuptial agreement.
Certification of an acknowledgment in the manner prescribed by law [Real Property Law § 303, 309-a] is prima facie evidence that the document was executed by the person who purportedly signed it (CPLR 4538). The intent of CPLR 4538 was to create an exception to the hearsay rule making a certificate admissible without testimony and to create a rebuttable presumption in its favor (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 4538). Under the prior statute, Section 384 of the Civil Practice Act, the presumption of the validity of acknowledgment created by a proper certification was so strong it could only be rebutted by clear and convincing evidence so as to amount to a moral certainty ( Albany County Savings Bank v. McCarthy, 149 NY 71, 82-83; Rock v. Rock, 195 App Div 59, 63; Matter of Goodman, 2 AD2d 558, 562-564; Spraker v. Spraker, 152 Misc 867). There is no reason to suppose that the drafters of CPLR 4538 did not intend the case law interpreting the predecessor statute to continue to apply (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 4538). Furthermore, the burden of proving want of due execution of an instrument admittedly signed and bearing a certificate of acknowledgment, apparently in due form, is upon the party attacking the document ( Spraker v. Spraker, 152 Misc 867, 872).
The executrix argues that Mrs. Seviroli's testimony, wherein she admits she signed or executed the prenuptial agreement, supplies the necessary oral acknowledgment. That argument must be rejected. The Court of Appeals in Matisoff v. Dobi ( 90 NY2d 127 at 137) held that a party's admission in open court that their signature was authentic did not, by itself, constitute a proper acknowledgment ( see also Garguilio v. Garguilio, 122 AD2d 105, 106, where an affidavit admitting the party signing an agreement was held to not be a sufficient substitute for an acknowledgment). Cases cited by the executrix such as Arizin v. Covello ( 175 Misc 2d 453) and Hurley v. Johnson ( 4 Misc 3d 616) do not support the contention that Mrs. Seviroli's deposition testimony is sufficient to constitute a subsequent acknowledgment of the document.
On the other hand, the only evidence in this case other than the certificate of acknowledgment is the self-serving affidavit of Mrs. Seviroli and the testimony and affidavit of the attorney-notary, Annette Soriano, that she "probably didn't" ask Mrs. Seviroli if she had signed the instrument. Even viewing this proof in a light most favorable to Maria Seviroli, it is insufficient to provide that clear and convincing evidence amounting to a moral certainty that overcomes the presumption of validity of acknowledgment created by a proper certification ( Albany County Savings Bank v. McCarthy, 149 NY 71; Rock v. Rock, 195 App Div 59; Matter of Goodman, 2 AD2d 558; Spraker v. Spraker, 152 Misc 867).
Moreover, there is no support for the proposition that there is any prescribed ceremonial format by which the person who signs the document must make the oral declaration of acknowledgment ( Matter of Cerrito, NYLJ, June 12, 1995 at 36, col 6). Searching the record, the court has the power to consider summary relief on behalf of the executrix on the issue of the due acknowledgment of the agreement (CPLR 3212[b]).
As Surrogate Radigan said in Matter of Cerrito (NYLJ, June 12, 1995 at 36, col 6), none of the statutory provisions of the Real Property Law, such as Real Property Law § 292 and Real Property Law § 303, specify the format that an oral acknowledgment must take. The purpose of an acknowledgment is to prove the identify of the person whose name appears on the document and that such person actually signed the instrument ( Matter of Bristol v. Buck, 201 App Div 100, aff'd 234 NY 504). Substantial compliance with the statutory requisites of an acknowledgment has been always sufficient ( Schum v. Burchard, 211 App Div 126, aff'd 240 NY 577; Smith v. Boyd, 101 NY 472). In this case as in the Cerrito case, the maker of the instrument signed the agreement in the presence of the attorney-notary, was known by the notary personally and appeared before the attorney-notary for the express purpose of executing the agreement negotiated and prepared by the attorneys for the parties. Again, as Surrogate Radigan stated: "the efficacy of the acknowledgment should not be nullified by the mere omission of the signer to orally state she signed the instrument. Form is not preferred over substance, nor should ceremonial rituals displace common sense. Where the circumstances surrounding the taking of the acknowledgment adequately disclose compliance with the statutory requirements, there is no reason why the acknowledgment of the signer may not take the form of . . . conduct that expressly or impliedly signifies the signer's assent" ( Matter of Cerrito, NYLJ, June 12, 1995 at 36, col 6).
In this matter, the unrebutted affidavit of Ms. Soriano establishes that after she warned Mrs. Seviroli that she had counseled her not to sign the prenuptial agreement, Mrs. Seviroli indicated she did not care and was going to sign the instrument and proceeded to do so in the presence of Ms. Soriano. Mrs. Seviroli would have the court rule that a certification is invalid, absent a post-execution oral declaration, where the signatory announces to the certifying officer that she is going to execute the document and then does so in the presence and sight of the certifying officer. The validity and effect of every deed, prenuptial, or post-nuptial agreement executed in this state would hinge on whether an oral declaration was made immediately after the instrument was signed, rather than immediately before. While all courts normally accord statutes their plain meaning, they "will not blindly apply the words of a statute to arrive at an unreasonable or absurd result" ( Williams v. Williams 23 NY2d 592, 599; People v. Santi, 3 NY3d 234) but rather will invoke "the common mandate of statutory construction to avoid absurd results" ( Rowland v. California Men's Colony, 506 US 194, 200).
In circumstances such as are present in this case, both parties to the agreement, who are represented by and acting through counsel, are entitled to rely upon the truthfulness of the statements made by the other's attorney set forth in the written acknowledgment. The Court of Appeals acknowledged as much itself in ruling for a "bright line" requirement of an acknowledgment to create a valid nuptial agreement when it said, "[c]onsequently, spouses or prospective spouses will not need to speculate whether the enforceability of their agreements will be supported by their original motivation or subsequent economic relationship during the marriage. Certainly, consistent and predictable enforcement is desirable with regard to such important marital agreements" ( Matisoff v. Dobi, 90 NY2d 127, 136). The court, therefore, finds that the prenuptial agreement was validly executed and acknowledged.
In addition, while it is not argued by the executrix or the adult children of the decedent, there is no impediment to the attorney-notary as the officer taking the acknowledgment who signed the document, supplying the necessary proof as a subscribing witness at a later date ( Matisoff v. Dobi, 90 NY2d 127, 137; Matter of Saperstein, 254 AD2d 88; Matter of Maul, 176 Misc 170, aff'd 261 App Div 941, aff'd 287 NY 694; Matter of Stegman, 42 Misc 2d 273; Matter of Felicetti, NYLJ, Jan. 22, 1998 at 31, col 1). The court construes the supplemental affidavit of Annette Soriano as such an affidavit and finds that it provides the necessary proof for recording of the instrument (Real Property Law § 304). Thus, even if the acknowledgment were defective, the alleged defect has been cured by the notary supplying the necessary proof as a subscribing witness.
Accordingly, the cross-motion by the respondent to declare the prenuptial agreement invalid on the grounds that it was not duly acknowledged is denied. The motion by the executrix for summary judgment in her favor on this issue is granted.
The foregoing is the decision and order of the court.