Opinion
11-18-2015
In the Matter of Anthony Frank FIZZINOGLIA, Also Known as Anthony F. Fizzinoglia and Another, Deceased. Josephine Paradiso Fizzinoglia, Appellant; Frank Fizzinoglia, Respondent.
McCarthy Fingar LLP, White Plains (Sondra M. Miller, Frank W. Streng and Robert H. Rosh of counsel), for appellant. Daniels, Porco and Lusardi, LLP, Carmel (Robert C. Lusardi of counsel), for respondent.
McCarthy Fingar LLP, White Plains (Sondra M. Miller, Frank W. Streng and Robert H. Rosh of counsel), for appellant.
Daniels, Porco and Lusardi, LLP, Carmel (Robert C. Lusardi of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In this administration proceeding pursuant to Surrogate's Court Procedure Act § 1001, Surrogate's Court properly denied petitioner's motion for summary judgment dismissing objectant's claim against the estate. Petitioner did not make a prima facie showing that the prenuptial agreement she and the decedent signed was invalid and unenforceable insofar as it omitted a statement of the parties' assets and liabilities. Notably, petitioner testified that she was aware when the agreement was executed that the statement was absent, and that, at the time, the decedent's finances "didn't matter" to her. Moreover, the record does not contain any indication that the decedent "attempted to conceal or misrepresent the nature or extent of his assets" (Panossian v. Panossian, 172 A.D.2d 811, 813, 569 N.Y.S.2d 182 [2d Dept.1991] ).
At trial, Surrogate's Court properly granted objectant's motion for judgment as a matter of law under CPLR 4401. Petitioner failed to present prima facie proof that "a fact-based, particularized inequality" (Matter of Greiff, 92 N.Y.2d 341, 346, 680 N.Y.S.2d 894, 703 N.E.2d 752 [1998] ) existed between the decedent and herself at the time of the execution of the prenuptial agreement, or meet her resulting burden of proof that the agreement was the product of fraud, duress, overreaching, or other inequitable conduct by the decedent (see generally Christian v. Christian, 42 N.Y.2d 63, 71–73, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ).
Petitioner's remaining contentions lack merit in the circumstances of this case. Chief Judge LIPPMAN and Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN and FAHEY concur.
Order affirmed, with costs, in a memorandum.