In re the Estate of Gardner

Appellate Division of the Supreme Court of New York

In re the Estate of Gardner

176 A.D.2d 142, 574 N.Y.S.2d 28, 1991 N.Y. App. Div. LEXIS 12124

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 17, 1991

StatusPublished

Cited by3 cases

This text of 176 A.D.2d 142 (In re the Estate of Gardner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Gardner, 176 A.D.2d 142, 574 N.Y.S.2d 28, 1991 N.Y. App. Div. LEXIS 12124 (N.Y. Ct. App. 1991).

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— Order, Surrogate’s Court, New York County (Renee R. Roth, S.), entered February 6, 1991, which, inter alia, directed an accounting, unanimously affirmed, with costs.

Petitioner’s right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse” of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 NY 429; Matter of Riefberg, 58 NY2d 134). While it is clear that Catherine Gardner departed the marital residence at least five years prior to decedent’s death, to care for her ill sister in Florida, there was an inadequate showing of the requisite elements that such departure was unjustified and without decedent’s consent (supra). Respondent also failed to establish that Catherine Gardner had a duty to support decedent; had the means or ability to do so; and failed or refused to do so. Concur — Murphy, P. J., Rosenberger, Ellerin, Kassal and Rubin, JJ., concur.

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— Order, Surrogate’s Court, New York County (Renee R. Roth, S.), entered February 6, 1991, which, inter alia, directed an accounting, unanimously affirmed, with costs.

Petitioner’s right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse” of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 NY 429; Matter of Riefberg, 58 NY2d 134). While it is clear that Catherine Gardner departed the marital residence at least five years prior to decedent’s death, to care for her ill sister in Florida, there was an inadequate showing of the requisite elements that such departure was unjustified and without decedent’s consent (supra). Respondent also failed to establish that Catherine Gardner had a duty to support decedent; had the means or ability to do so; and failed or refused to do so. Concur — Murphy, P. J., Rosenberger, Ellerin, Kassal and Rubin, JJ., concur.

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176 A.D.2d 142, 574 N.Y.S.2d 28, 1991 N.Y. App. Div. LEXIS 12124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-gardner-nyappdiv-1991.

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