Opinion
March 21, 2001.
Appeal from Order of Monroe County Surrogate's Court, Ciaccio, S. — EPTL.
PRESENT: PIGOTT, JR., P. J., PINE, HAYES, KEHOE AND BURNS, JJ.
Order unanimously reversed on the law without costs, motion denied and application reinstated.
Memorandum:
Petitioner and Linda J. Mancuso (decedent) were married in 1985 and separated in 1994. Upon the death of decedent in 1997, her will was admitted to probate. Petitioner, who was disinherited, filed an application to have Surrogate's Court determine his right to elect against the will. Respondent, decedent's estate, moved for summary judgment dismissing the application, alleging that petitioner had been disqualified as a surviving spouse by abandoning decedent in 1994 and by failing to support her since that time. The court erred in granting respondent's motion. In view of the deposition testimony of petitioner that decedent asked him to leave the marital residence, we conclude that respondent failed to establish as a matter of law that petitioner abandoned decedent ( see, EPTL 5-1.2 [a] [5]). Respondent also failed to establish as a matter of law that petitioner had sufficient means or ability to support decedent, an essential element of its non-support claim ( see, EPTL 5-1.2 [a] [6]).