Opinion
Index No. 68169
06-29-2021
Danielle N. RYERSON, Plaintiff, v. Randy B. RYERSON, II, Defendant.
Mack & Associates, PLLC (Barrett D. Mack, Esq. of counsel), Albany, New York, for the plaintiff. Rose T. Place, Esq., Lake Placid, New York, for the defendant.
Mack & Associates, PLLC (Barrett D. Mack, Esq. of counsel), Albany, New York, for the plaintiff.
Rose T. Place, Esq., Lake Placid, New York, for the defendant.
Richard B. Meyer, J. Motions by the defendant to declare the March 29, 2020 separation agreement between the parties to be null, void, and unenforceable for lack of a proper acknowledgment, establish child support, and order a psychological evaluation for child custody purposes.
Two motions were filed by the defendant seeking to invalidate the separation agreement, the first filed on January 14, 2021, and the second on March 4, 2021. The following papers in addition to the pleadings have been considered: a notice of motion dated January 4, 2021, an affidavit of Randy B. Ryerson, II sworn to January 4, 2021 with exhibits A through D, a notice of motion dated March 4, 2021, an affidavit of Randy B. Ryerson, II sworn to February 19, 2021, and an affirmation of Rose T. Place, Esq dated March 4, 2021 with exhibits A through E, all in support of the motions; an affirmation of Barrett Mack, Esq. dated March 9, 2021 with exhibits A and B, a second affirmation of Barrett Mack, Esq. dated March 9, 2021, an affidavit of Danielle Ryerson sworn to March 9, 2021 with exhibits A and B, and a second affidavit of Danielle Ryerson sworn to March 9, 2021 with exhibits A through M, all in opposition to the motions. In addition, a hearing was held on May 20, 2021, at which the parties and William J. McCoskery (McCoskery), the person who provided mediation services, prepared the separation agreement, and acknowledged the parties' signatures thereto, testified. The Court has evaluated the testimony of each witness and assessed their credibility, as well as considered the exhibits received in evidence consisting of defendant's exhibits A through E, plus H and I, and plaintiff's exhibit 1.
The relevant and material facts of this case are not in dispute. The parties engaged McCoskery to act as a mediator in assisting the parties in resolving various matters attendant to their divorce, with the mediation cost to be split equally between them. The parties met once in person with McCoskery, during which he advised both parties to consult with an attorney. Based upon his discussions with the parties, McCoskery prepared a fifteen-page separation agreement and emailed it to both parties for their review, although the defendant did not read the complete document. Because the Governor had declared a state of emergency on March 7, 2020 and authorized the provision of notarial services by audio-video technology in Executive Order No. 202.7, McCoskery and the parties arranged for the separation agreement to be executed by them under his supervision via Zoom video conferencing and McCoskery would complete the acknowledgment of their signatures in accordance with Executive Order No. 202.7.
On March 29, 2020, a Sunday, the defendant, who had previously moved out of the marital residence, went to that residence for the purpose of executing the agreement. When he arrived at the residence, a complete copy of the separation agreement was there for him. Despite the fact that he then was in possession of the final draft of the separation agreement, the defendant did not read it in its entirety. Moreover, the defendant admitted that he did not consult with an attorney about the draft separation agreement even though he knew he was free to do so. The parties sat at the dining room table with a complete copy of the agreement in front of them. Once again, the defendant chose not to read it through. After establishing the Zoom connection with McCoskery, the defendant and the plaintiff each displayed photo identification in the form of New York state driver's licenses to McCoskery and confirmed that they were in New York state. McCoskery asked them if they were comfortable signing the agreement and both affirmatively stated that they were. The defendant signed the agreement first, and then the plaintiff signed it, all in the view of McCoskery. Each party also orally stated to McCoskery that they signed it.
The plaintiff did not have a document scanner or facsimile machine in her home by which she could electronically return the agreement to McCoskery that same day. While both parties were present and the video conference was live, McCoskery instructed the plaintiff to mail the agreement back to him, which she did. The defendant raised no objection to that procedure. McCoskery could not recall when exactly he received the entire original separation agreement signed by the parties in the mail, testifying that it was within four or five days or within a week. When he did receive it, McCoskery testified that he compared it word for word with the document he had emailed to them. Upon confirming that the signed agreement was exactly the same as the one he had emailed, he acknowledged the parties' signatures and mailed a copy to each of them. Thereafter, the parties complied with some of the terms of the agreement, including but not limited to the defendant's execution of a quitclaim deed of the marital residence conveying his interest therein to the plaintiff, the plaintiff's transfer of the title to vehicle to the defendant, and, until at least August 2020 the custody schedule.
The defendant contends that the signed agreement had to be electronically sent to McCoskery on the day the parties signed it in order for the acknowledgment to be legally valid under Executive Order No. 202.7. According to that Order, once the agreement was signed during the video conference a legible copy of the signed agreement was to be "transmit[ted] by fax or electronic means ... directly to the Notary on the same date it was signed". The defendant's claims that the purpose of requiring the electronic transmission of the signed document to the notary on the same day as the document is executed is so that the notary can compare the signed document with the one (s)he furnished to the parties for signature. Since the agreement was mailed on the date it was signed and McCoskery completed the acknowledgment on a different date, the defendant asserts that the entire agreement must be declared null, void and legally invalid.
"An 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." ( Domestic Relations Law § 236 [B][3] ).
"Pursuant to the Real Property Law, proper acknowledgment or proof is an essential prerequisite to recording a deed in the office of the county clerk (see, Real Property Law § 291 ). Such acknowledgment or proof, moreover, must meet various specifications. The Real Property Law dictates who may make an acknowledgment or proof (see, Real Property Law § 292 ); before whom such acknowledgment or proof may be made (see, Real Property Law §§ 298, 299 ); that an officer taking an acknowledgment must ‘know[ ] or [have] satisfactory evidence, that the person making it is the person described in and who executed such instrument’ ( Real Property Law § 303 ; see also, Real Property Law § 304 [concerning proof by subscribing witness]); that the person taking the acknowledgment or proof must attach a certificate of acknowledgment (see, Real Property Law § 306 ); and the contents of that certificate (see, id. ). * * * Generally, acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person." ( Matisoff v. Dobi , 90 N.Y.2d 127, 132-133, 659 N.Y.S.2d 209, 212, 681 N.E.2d 376, 379 [1997] ).
An acknowledgment "may be made ... [a]t any place within the state, before ... a notary public." ( Real Property Law § 298[1][d] ). "[T]here is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute" ( Weinstein v. Weinstein , 36 A.D.3d 797, 798, 830 N.Y.S.2d 179 [(2007)] ; see Matter of Abady , 76 A.D.3d [525], 526, 906 N.Y.S.2d 321 [(2010)] )." ( Matter of Koegel , 160 A.D.3d 11, 22, 70 N.Y.S.3d 540, 548 [2d Dept., 2018] )
"The acknowledgment requirement fulfills two important purposes. First, ‘acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person’ ( Matisoff, 90 N.Y.2d at 133, 659 N.Y.S.2d 209, 681 N.E.2d 376 ). Second, it necessarily imposes on the signer a measure of deliberation in the act of executing the document. Just as in the case of a deed where the law puts in the path of the grantor ‘formalities to check haste and foster reflection and care ... [h]ere, too, the formality of an acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care’ ( id . at 136, 659 N.Y.S.2d 209, 681 N.E.2d 376 [internal quotation marks and citation omitted])." ( Galetta v. Galetta , 21 N.Y.3d 186, 191-192, 969 N.Y.S.2d 826, 829, 991 N.E.2d 684, 687 [2013] ).
In Matisoff , the separation agreement was "concededly unacknowledged" ( Matisoff v. Dobi, supra., at 133, 659 N.Y.S.2d at 212, 681 N.E.2d at 379 ), which is not the situation here. The Court of Appeals in Galleta invalidated a separation agreement because the certificate of acknowledgment of the husband was defective. There, "the ‘to me known and known to me’ phrase was inexplicably omitted" ( Galetta v. Galetta, supra, at 193, 969 N.Y.S.2d at 830, 991 N.E.2d at 688 ) and there was nothing in the certificate indicating "that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement." ( id. ). Contrary to the defendant's claim, the court in Galleta did not invalidate the acknowledgment because the procedure utilized by the notary was defective; rather, the acknowledgment was substantively defective. Such is not the situation in the case at bar.
It is not disputed by the defendant that, at the time he and the plaintiff executed the separation agreement, McCoskery was a notary public, he and the plaintiff identified themselves to McCoskery with their respective driver's licenses before signing the agreement, McCoskery witnessed each of them sign the agreement, that each party told McCoskery that they signed the agreement, and that within a few days thereafter McCoskery completed a certificate of acknowledgment for each signature that was affixed to the agreement. The defendant does not claim that either his signature or that of the plaintiff to the separation agreement is not authentic. Indeed, he concedes that the signatures are authentic and that McCoskery knew his identity and that of the plaintiff when the agreement was signed. Moreover, no evidence has been presented, or claim made, that the separation agreement before the Court is not the same one that the defendant signed. Clearly, the legal form and substance requirements necessary for an acknowledgment to be made were satisfied, and the purposes of an acknowledgment were met.
Review of the case authorities since Matisoff reveals that the issue of contemporaneous acknowledgment has generally arisen where the certificate of acknowledgment is defective in form and content (see, Galetta v. Galetta, supra ; D'Elia v. D'Elia , 14 A.D.3d 477, 788 N.Y.S.2d 156 [2d Dept., 2005] ) or no certificate of acknowledgment was attached to the signed document at all (see, Wetherby v. Wetherby , 50 A.D.3d 1226, 854 N.Y.S.2d 813 [3d Dept., 2008] ) or until at or about the time of commencement of the divorce action (see, e.g., Filkins v. Filkins , 303 A.D.2d 934, 757 N.Y.S.2d 665 [4th Dept., 2003] ; Anderson v. Anderson , 186 A.D.3d 1000, 130 N.Y.S.3d 138 [4th Dept., 2020] ; Anonymous v. Anonymous , 253 A.D.2d 696, 677 N.Y.S.2d 573 [1st Dept., 1998] ). The present case does not fall within the ambit of any of those precedents.
Indeed, the question here involves the issue not addressed in Matisoff , namely, whether an acknowledgment must be completed contemporaneously with the signer's execution. Notably, the court in Matisoff stated, " Domestic Relations Law § 236(B)(3) and the Real Property Law do not specify when the requisite acknowledgment must be made. It is therefore unclear whether acknowledgment must be contemporaneous with the signing of the agreement." ( Matisoff v. Dobi, supra , at 137, 659 N.Y.S.2d at 214, 681 N.E.2d at 381 ). The Fourth Department in Anderson held that "in order for the acknowledgment to have true significance and purpose, it must be done contemporaneously with the parties' signatures or, if the acknowledgment occurs at a later date, the agreement must be mutually reaffirmed by the parties (see generally D'Elia v. D'Elia , 14 A.D.3d 477, 478, 788 N.Y.S.2d 156 [2d Dept., 2005] ; Arizin v. Covello , 175 Misc. 2d 453, 457, 669 N.Y.S.2d 189 [Sup. Ct., N.Y. County 1998] )." ( Anderson v. Anderson, supra, at 1002-1003, 130 N.Y.S.3d at 140-141 ). Two justices dissented, holding that there is no statutory requirement
"that the acknowledgment ‘must be done contemporaneously with the parties' signatures.’ Respectfully, that mandate is unsupported by any precedent and is contrary to the well-settled principles that contracts, including nuptial agreements, are presumed to be valid (see Bloomfield v. Bloomfield , 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 [2001] ; Matter of Sunshine , 51 A.D.2d 326, 327, 381 N.Y.S.2d 260 [1st Dept., 1976], affd 40 N.Y.2d 875, 389 N.Y.S.2d 344, 357 N.E.2d 999 [1976] ), and may be executed in counterparts and at different locations -- which implies that it is possible that such agreements will not be signed and acknowledged by the parties at exactly the same time (see generally Pulver v. Pulver , 40 A.D.3d 1315, 1317, 837 N.Y.S.2d 369 [3d Dept., 2007] )." ( Anderson, supra, at 1004, 130 N.Y.S.3d at 141-142 ).
If there is no mandate that an acknowledgment be made contemporaneously with execution, the acknowledgment here is legally valid. Now awaiting the Governor's signature or veto is Senate Bill No. 1780-C and Assembly Bill No. 399 which would create a new § 137-a of the Executive Law establishing a framework for electronic notarization. There is no provision in that statute directing when the notary is to apply her or his electronic signature and complete an acknowledgment. It may well be that the lack of any such specification indicates a legislative recognition that there is no requirement of a time limit within which a notary must execute a certificate of acknowledgment. Similarly, Executive Law § 142-a creates a presumption of validity for certain defects in the acts of a notary public including, among other things, the ineligibility of a notary public to act, the notary's failure to take or file an official oath, and expiration of the notary's term. The failure within six months to challenge the sufficiency of the notary's acts based upon one or more of the defects listed in that statute constitutes a waiver of the right so to do ( Executive Law § 142-a [3] ). Missing from the list of defects is any failure by a notary to affix her or his signature to a certificate of acknowledgment within a specified period of time from execution by the signers, a recognition perhaps that there is no mandate that an acknowledgment must be made contemporaneously with the signer's execution.
Nonetheless, assuming for the purposes of this litigation that there is such a mandate, the question of what "contemporaneous" means in the context of an acknowledgment must be resolved. There is no statute or case authority which defines the "contemporaneous". "Contemporaneous" is defined to mean, "existing, occurring, or originating during the same time" or "happening or existing at the same period of time." Contemporaneous is not to be equated to or confused with simultaneous, which is defined as "happening or being done at exactly the same time:" Thus, it is clear that for an acknowledgment to be valid, there can be some time lapse between the signer's execution and the completion of the acknowledgment. It is not clear that in requiring the facsimile or email transmission of the signed document, Executive Order No. 202.7 intended to impose a strict requirement that the acknowledgment be completed the same day as the document was executed by the signer(s) thereof. It could be argued that the intent was to ensure that the acknowledgment actually be signed by the notary so as to avoid situations as occurred in Wetherby, Filkins, Anderson and Anonymous, supra.
https://www.merriam-webster.com/dictionary/contemporaneous.
https://dictionary-cambridge-org.ezproxy.lib.ntust.edu.tw/us/dictionary/english/contemporaneous.
https://dictionary-cambridge-org.ezproxy.lib.ntust.edu.tw/us/dictionary/english/simultaneous.
An "acknowledgment is an authentication or verification of the signature of the [signer] ... It establishes merely that the [document] was ‘duly signed.’ It proves the identity of the person whose name appears on the [document], and that such person signed the [document]. But it goes no further." ( Bristol v. Buck , 201 A.D. 100, 102, 194 N.Y.S. 53, 55 [3d Dept., 1922], affd , 234 N.Y. 504, 138 N.E. 423 [1922] ); see, also, Jennings-Purnell v. Donner , 149 A.D.3d 499, 52 N.Y.S.3d 98 [1st Dept., 2017] ). It defies reason and logic that a certificate of acknowledgment and the signed document to which it is affixed is rendered null and void by the mere failure of a notary to affix her or his signature to that certificate and place her or his stamp or seal thereon within one hour, one day, or one week after the notary personally confirms the identity of the signer, observes the signer execute the document, and is told by the signer that the signer executed the document. While there may be reasons to invalidate a document where the acknowledgment is not completed and affixed after an extensive period of time, such is not the case here.
Under the circumstances in this case, McCoskery's completion of the certificate of acknowledgment to the separation agreement within four days of the parties' execution of that agreement was sufficiently timely so as to be legally valid and the agreement is not rendered invalid or void by that lapse of time. The defendant's motions to declare the separation agreement null, void and of no legal effect are denied, without motion costs. The remaining relief sought by the defendant in his January 2021 motion is rendered moot by the provisions of the separation agreement because "spouses are encouraged to resolve their own issues and judicial review of separation agreements is to be exercised sparingly (see Christian v. Christian, 42 N.Y.2d 63, 71–72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ; Curtis v. Curtis, 20 A.D.3d 653, 654–655, 798 N.Y.S.2d 764 [(2005)] ; Lounsbury v. Lounsbury, 300 A.D.2d 812, 814, 752 N.Y.S.2d 103 [2002] )." ( Marin-Brown v. Brown , 79 A.D.3d 1302, 1303, 912 N.Y.S.2d 755, 756 [3d Dept., 2010] ).
It is so ordered.