In re the Estate of Mancuso

Appellate Division of the Supreme Court of New York

In re the Estate of Mancuso

281 A.D.2d 874, 722 N.Y.S.2d 651, 2001 N.Y. App. Div. LEXIS 2830

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

DecidedMarch 21, 2001

DocketAppeal No. 1

StatusPublished

This text of 281 A.D.2d 874 (In re the Estate of Mancuso) 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.

Bluebook

In re the Estate of Mancuso, 281 A.D.2d 874, 722 N.Y.S.2d 651, 2001 N.Y. App. Div. LEXIS 2830 (N.Y. Ct. App. 2001).

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Opinion

—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]). (Appeal from Order of Monroe County Surrogate’s Court, Ciaccio, S. — EPTL.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.

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—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]). (Appeal from Order of Monroe County Surrogate’s Court, Ciaccio, S. — EPTL.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.

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Bluebook (online)

281 A.D.2d 874, 722 N.Y.S.2d 651, 2001 N.Y. App. Div. LEXIS 2830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mancuso-nyappdiv-2001.