In this proceeding to determine the validity of a right of election, the petitioner, the decedent's spouse, moves for summary judgment seeking the dismissal of the objections of the respondents, the decedent's companion and her son, a determination that she validly exercised her right of election entitling her to an elective share of the decedent's estate, and an order directing the respondents to pay her the sum of $5,500, representing the proceeds of the sale of the decedent's Jeep Grand Cherokee, on the ground it was exempt property under EPTL 5-3.1.

In opposition, the companion alleges that: (1) she lived with the decedent for seventeen years as his wife, and never knew that the decedent may have had a spouse until the last days prior to his death on January 12, 2005; (2) she cared for the decedent during his terminal illness; (3) the decedent treated her children as his children; and, (4) the spouse abandoned the decedent. An affidavit from a friend of the decedent states that he knew the decedent for over ten years prior to his death, accompanied the decedent on fishing trips and, during this period, the decedent confided to him that the petitioner, without cause, forced him to leave the marital residence and refused to let him return, thus abandoning the marital relationship. The decedent's brother's affidavit also avers that sometime in 1980 the spouse, without just cause, forced the decedent to leave the marital residence and forbade him to return, thus abandoning the decedent, after which the decedent began residing with the companion.

Although the respondents present several arguments in support of their contention that the summary judgment motion should be denied, primarily they rely on the fact that the affidavits they submitted in opposition to this motion raise questions of fact on the issue of abandonment and that the petitioner, if her condition permits, should be made available to be deposed before the abandonment issue is ripe for determination.

In her reply affidavit, the spouse states that: (1) she married the decedent on April 29, 1973 and remained married to him until his death; (2) at no time did she abandon the decedent; (3) the only time that she ceased to live with the decedent was when she was hospitalized at Lutheran [*2]Memorial Hospital in 2001 for emotional problems and chronic obstructive pulmonary disease, after which she was transferred to the hospital's long-term care facility and then to a nursing facility; (4) for nearly 20 years, until her initial hospitalization, she and the decedent lived together in Queens; (5) although he did stay out overnight on a number of occasions while they resided together, the decedent stated that he was going on overnight fishing trips, to Boston, or staying at his daughter's home; (6) after the spouse entered the nursing home, the decedent visited her once a week, took her out for short rides and purchased new clothing for her; (7) she nursed the decedent back to health 20 years ago when he had a heart attack; (8) she helped the decedent apply for his position at the Metropolitan Transit Authority; and (9) prior to her illness, she continued to work and save money, thus insuring that the decedent could pay child support for his children. The petitioner argues that the affidavit of the decedent's friend is of no value because it is inadmissible hearsay evidence and that the court should strike the brother's affidavit because he failed to appear for a deposition.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as mater of law, tendering sufficient evidence, in admissible form, to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

Pursuant to EPTL 5-1.2 (a) (5), a spouse, who is disqualified as a surviving spouse on the ground of abandonment that continued until the decedent's death, is precluded from either taking an elective share under EPTL 5-1.1-A or receiving exempt property under EPTL 5-3.1. It is well settled that, in determining whether a spouse is disqualified on the ground of abandonment under EPTL 5-1.2 (a) (5), the court employs the same standard that is used in a separation action where the issue is abandonment; i.e., the petitioner must show that the abandonment was unjustified and without the other spouse's consent (see Matter of Baldo, 210 AD2d 848, 849-850 [1994], citing Matter of Reifberg, 58 NY2d 134, 138 [1983]; Schine v Schine, 31 NY2d 113, 119 [1972]; Matter of Maiden, 284 NY 429 [1940]; Matter of Ruff, 91 AD2d 814 [1982]; see also Matter of Lapenna, 16 AD2d 655 [1962], app dsmd 12 NY2d 671 [1962]).

Here, the petitioner argues that the court should not consider the decedent's brother's affidavit because he failed to be deposed, notwithstanding that she submitted her own affidavit in support of this motion while, to date, she has not made herself available to be deposed at the nursing facility where she resides. Under these circumstances, the court cannot ignore the brother's affidavit. Moreover, the totality of the proof presented herein by both the petitioner and the respondents raises a question of fact with regard to the issue of abandonment.

Accordingly, this decision constitutes the order of the court denying the petitioner's motion for summary judgment. Counsel for the respective parties are to appear for a conference at 9:30 a.m. on September 29, 2010 in Room 406 to discuss the outstanding discovery issues. The Chief Clerk [*3]shall mail a copy of this decision and order to respective counsel.



SURROGATE