| Galetta v Galetta |
| 2012 NY Slip Op 04865 [96 AD3d 1565] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| Michelle Galetta, Appellant, v Gary Galetta,Respondent. |
—[*1] Stephen M. Leonardo, Rochester (Kathleen P. Reardon of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (John M. Owens, J.), enteredSeptember 28, 2011. The order, among other things, denied plaintiff's motion for summaryjudgment.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: After plaintiff commenced this divorce action, she moved for, inter alia,summary judgment determining that the parties' prenuptial agreement is invalid because it wasnot properly acknowledged. Contrary to plaintiff's contention, Supreme Court properly deniedthat part of her motion. Pursuant to Domestic Relations Law § 236 (B) (3), "[a]nagreement by the parties, made before or during the marriage, shall be valid and enforceable in amatrimonial action if such agreement is in writing, subscribed by the parties, and acknowledgedor proven in the manner required to entitle a deed to be recorded." In order to satisfy theacknowledgment requirement, "there must be an oral acknowledgment before an authorizedofficer, and a written certificate of acknowledgment must be attached to the agreement"(Filkins v Filkins [appeal No. 3], 303 AD2d 934, 934 [2003]; see Matisoff vDobi, 90 NY2d 127, 137-138 [1997]; see generally Real Property Law§§ 291, 306).
We agree with plaintiff that the written certificate of acknowledgment is insufficient becauseit does not contain the information required by Real Property Law § 303, i.e., that theperson taking the acknowledgment "knows or has satisfactory evidence, that the person making itis the person described in and who executed such instrument." Contrary to defendant'scontention, the certificate was not in "substantial compliance" with the statute, and thus thecourt's reliance on Weinstein vWeinstein (36 AD3d 797, 798 [2007]) for that proposition was misplaced. InWeinstein, the language in the certificate failed to conform to the "precise language" ofthe Real Property Law (id.). Here, however, the certificate fails to "stat[e] all the mattersrequired to be done, known, or proved on the taking of such acknowledgment or proof" (§306). Inasmuch as the certificate is devoid of information required by the Real Property Law, weconclude that it is insufficient on its face and does not establish that the prenuptial agreement wasproperly acknowledged (see generally Fryer v Rockefeller, 63 NY 268, 272-273[1875]; Garguilio v [*2]Garguilio, 122 AD2d 105, 106[1986]; Gross v Rowley, 147 App Div 529, 531-532 [1911]).
We agree with defendant that a subsequently-filed affidavit from the notary who tookdefendant's acknowledgment raises a triable issue of fact whether the prenuptial agreement wasproperly acknowledged. Although the dissent correctly notes that defendant does not specificallycontend in his brief on appeal that the affidavit cured the defect, we conclude that such acontention is implicit in defendant's submission of the notary's affidavit, the only purpose ofwhich was to cure the defect, i.e., to supply the information missing from thecontemporaneously-executed acknowledgment. In addition, defendant's attorney raised thatcontention at oral argument of this appeal. The issue squarely before us is thus whether defects insuch an acknowledgment are subject to cure. We conclude that they are.
In Matisoff (90 NY2d at 137), the Court of Appeals specifically declined to resolvethe issue "whether and under what circumstances the absence of acknowledgment can be cured,"and noted that other courts have been divided on the issue. It is well settled that defects in anacknowledgment required by EPTL 5-1.1-A (e) (2) (see EPTL 5-1.1 [f] [2]), concerningwaivers of the spousal right of election, may be cured (see Matisoff, 90 NY2d at 137;Matter of Maul, 176 Misc 170, 174 [1941], affd 262 App Div 941 [1941],affd 287 NY 694 [1942]; Matter of Saperstein, 254 AD2d 88, 88-89 [1998];see generally Rogers v Pell, 154 NY 518, 530-531 [1898]). Inasmuch as the language ofthe EPTL contains the same "restrictive acknowledgment language as the Domestic RelationsLaw under discussion in the Matisoff case" (D'Agrosa v Coniglio, 12 Misc 3d1179[A], 2006 NY Slip Op 51305[U] [2006], at *3), we conclude that the same reasoning shouldapply to Domestic Relations Law § 236 (B) (3) and that defects in the acknowledgmentrequired by that section may be cured.
We recognize that there is a split of authority on the issue whether such defects may becured, and this Court has yet to take a position. In Arizin v Covello (175 Misc 2d 453,457 [1998]), the court held that "an unacknowledged nuptial agreement which is acknowledgedon a subsequent date is enforceable in a matrimonial action as long as the subsequentacknowledgment complies with the statutory requirements of Domestic Relations Law §236 (B) (3)" (see also Hurley vJohnson, 4 Misc 3d 616, 620 [2004]). We cited to Arizin in our decision inFilkins (303 AD2d at 934). In Filkins, however, there was no written certificateof acknowledgment attached to the parties' prenuptial agreement, and we held that "plaintiff'sattempt to cure the defect by having the agreement notarized and filed after commencement of[the] divorce action fail[ed] because the agreement was never reacknowledged in compliancewith Domestic Relations Law § 236 (B) (3)" (id. at 934-935). By citing toArizin, we implicitly endorsed the possibility that a defect in a technically improperacknowledgment accompanying a nuptial agreement could be cured (see id. at 935).
We recognize that the Second Department in D'Elia v D'Elia (14 AD3d 477, 478 [2005]) held that thedefendant's "attempt to cure the acknowledgment defect by submitting a duly-executed certificateof acknowledgment at trial was not sufficient," but it is not clear from that decision whether therewas a contemporaneous acknowledgment that was technically improper. We also recognize thatthe First Department in Anonymous v Anonymous (253 AD2d 696, 697 [1998], lvdismissed 93 NY2d 888 [1999]) "would not permit [the] defendant to cure [the] defect in the[prenuptial] agreement by an alleged acknowledgment in affidavit form which was executed andwhich surfaced some 12 years after the fact in the midst of a contested matrimonial action in lightof the required formalities of Domestic Relations Law § 236 (B) (3)." Inasmuch as thepreamble to the decision in Anonymous refers to "the absence of an acknowledgment"(id.), our decision herein is not inconsistent with that of the Second Department. Here,defendant is not attempting to cure the complete absence of a contemporaneousacknowledgment. Rather, he is attempting to submit evidence that there was, in fact, a proper andcontemporaneous acknowledgment at the time the prenuptial agreement was executed. In ourview, the affidavit from the notary who took [*3]defendant'sacknowledgment is sufficient to raise a triable issue of fact whether "the parties . . .contemporaneously demonstrated the deliberate nature of their agreement" (Schoeman, Marsh& Updike v Dobi, 264 AD2d 572, 573 [1999], lv dismissed 94 NY2d 944 [2000], 97NY2d 721 [2002], lv denied 100 NY2d 508 [2003]; cf. Leighton v Leighton, 46 AD3d 264, 265 [2007], appealdismissed 10 NY3d 739 [2008]). The statements of the notary, i.e., that it was his usual andcustomary practice to ask and confirm that the person signing the document was the same personnamed in the document and that he or she was signing said document, "constitute competent andadmissible evidence concerning routine professional practice sufficient to raise a triable issue offact" (Gier v CGF Health Sys., 307 AD2d 729, 730 [2003]; see generally Halloran vVirginia Chems., 41 NY2d 386, 389 [1977]). We thus conclude that the court properlydenied that part of plaintiff's motion for summary judgment seeking a determination as a matterof law that the parties' prenuptial agreement is invalid.
All concur except Centra and Carni, JJ., who dissent and vote to modify in accordance withthe following memorandum.
Centra and Carni, JJ. (dissenting). We respectfully dissent and would modify the order bygranting plaintiff's motion to the extent that it seeks summary judgment determining that theparties' prenuptial agreement is invalid and unenforceable. We agree with the majority that theprenuptial agreement was not properly acknowledged because the certificate of acknowledgmentof defendant's signature on the prenuptial agreement does not contain the information required byReal Property Law § 303, i.e., that the person taking the acknowledgment "knows or hassatisfactory evidence[ ] that the person making it is the person described in and who executedsuch instrument." We disagree with the majority, however, that defendant raised a triable issue offact sufficient to defeat the motion. In opposition to the motion, defendant submitted the affidavitof the notary who took defendant's acknowledgment of the prenuptial agreement. On appeal,defendant contends that the notary's affidavit "reaffirmed" that the acknowledgment was valid.We reject that contention because, as explained above, the certificate of acknowledgment wasdefective on its face and thus was not valid in the first instance. Defendant does not contend inthe alternative that, if the acknowledgment was defective, the notary's affidavit cured the defect.Thus, unlike the majority, we would not reach that issue because it is not before us.
In any event, we write to note our disagreement with the majority that a defect in anacknowledgment may be cured (seeD'Elia v D'Elia, 14 AD3d 477, 478 [2005]; see generally Filkins v Filkins[appeal No. 3], 303 AD2d 934, 934-935 [2003]). Furthermore, "[e]ven assuming. . . that the requisite acknowledgment could be supplied" at a later time and is notrequired to be made contemporaneous with the signing of the prenuptial agreement, we concludethat the notary's affidavit does not establish the proper acknowledgment or even raise a triableissue of fact (Matisoff v Dobi, 90 NY2d 127, 137 [1997]). The notary averred that "[i]twas then, and has always been, my custom and practice when taking an acknowledgment to askand confirm that the person signing the document was the same person named in the documentand that he or she was signing said document. I am confident I followed the same procedurewhen I took [defendant's] acknowledgment on" the prenuptial agreement. That affidavit isinsufficient to raise an issue of fact whether the notary "kn[ew] orha[d] satisfactory evidence[ ] that the person making [the acknowledgment]is the person described in and who executed" the prenuptial agreement (Real Property Law§ 303 [emphasis added]). Stated differently, there was no "identity of the person makingthe acknowledgment with the person described in the instrument and the person who executedthe same" (Gross v Rowley, 147 App Div 529, 531 [1911]). Present—Scudder,P.J., Centra, Carni, Sconiers and Martoche, JJ.