| Matter of Barabash |
| 2011 NY Slip Op 04666 [84 AD3d 1363] |
| May 31, 2011 |
| Appellate Division, Second Department |
| In the Matter of Eugene J. Barabash, Deceased. Eugene K.Barabash et al., Respondents; Linda Barabash, Appellant. |
—[*1] Donlon & Harold, P.C. (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A.Sweetbaum], of counsel), for respondents.
In a turnover proceeding pursuant to SCPA 2103 to recover certain real property on behalf ofa decedent's estate, Linda Barabash appeals from (1) a decision of the Surrogate's Court, SuffolkCounty (Czygier, S.), dated March 18, 2010, and (2) a decree of the same court entered April 13,2010, which, after a nonjury trial, directed her to turn over certain real property to the petitionersas coadministrators of the decedent's estate.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the decree is affirmed; and it is further,
Ordered that one bill of costs is awarded to the petitioners-respondents, payable by theappellant personally.
Upon the death of Eugene J. Barabash (hereinafter the decedent), the appellant wife wasobligated to turn over the marital residence to his estate, pursuant to an agreement signed by thedecedent and the appellant before their marriage. The four-page agreement in issue wasauthenticated by the appellant, who identified her subscribing signature and acknowledged thatshe and the decedent "both signed our signatures." As noted by the Surrogate, CPLR 4519,known as the Dead Man's Statute, did not preclude the appellant from testifying against her owninterest (see Harrington v Schiller, 231 NY 278, 285 [1921]; Miller vLu-Whitney, 61 AD3d 1043, 1044-1045 [2009]; Matter of Tremaine, 156 AD2d 862,863 [1989]; Brezinski v Brezinski, 84 AD2d 464, 468 [1982]).
The general rule with respect to prenuptial agreements "places no special evidentiary or otherburden on the party" who seeks to sustain the agreement (Matter of Sunshine, 40 NY2d875, 876 [1976]). However, a spouse who contests a prenuptial agreement may shift the burdenof disproving fraud or [*2]overreaching to the party seeking tosustain the agreement, by establishing "a fact-based, particularized inequality" (Matter ofGreiff, 92 NY2d 341, 346 [1998]; see Strong v Dubin, 48 AD3d 232, 232 [2008]). Inthis case, the appellant failed to establish any fact-based particularized inequality with thedecedent. The fact that she did not have independent counsel, without more, did not constitutegrounds to nullify the agreement (see Forsberg v Forsberg, 219 AD2d 615, 616 [1995]).
Upon the decedent's death, the appellant obtained sole title to the marital residence pursuantto the terms of the deed granting title to her as a tenant by the entirety with the decedent (seeMatter of Violi, 65 NY2d 392, 395 [1985]). However, the law required her, as sole owner, tofulfill her contractual agreement with respect to the property (see Wagner v Wagner, 58AD2d 7, 12 [1977], affd 44 NY2d 780 [1978]; Azzara v Azzara, 1 AD2d 1012,1013 [1956]). The fact that she had sole title upon the decedent's death did not absolve her of hercontractual obligations (see Lynch v King, 284 AD2d 309 [2001]).
The appellant's remaining contentions are without merit.
Accordingly, the Surrogate's Court properly directed the appellant to turn over the property tothe petitioners as coadministrators of the decedent's estate. Rivera, J.P., Balkin, Lott and Austin,JJ., concur.