The following papers numbered 1 to 3 read on these motions:

Papers Numbered

Notice of Motion, Affidavits (Affirmations) & Exhibits _______1

Cross-Motion, Affidavits (Affirmations) & Exhibits__________2Opposing Affidavit (Affirmations)______________________ 3

Petitioner Mordechai Cyngiel, the executor of the Estate of Shlomo Cyngiel, moves for summary judgment pursuant to CPLR §3212, on his petition seeking an order finding that Dora Avrumson failed to serve a notice of election during her lifetime, and that her right of election died with her.

Rima Krigsman, as Executor of the Estate of Dora Avrumson, cross-moves for an order extending the time to file the right of election on behalf of Dora Avrumson.^[FN1]

Decedent passed away on February 15, 2003. Dora Avrumson passed away on November 28, 2008. It is undisputed that during her lifetime Dora

Avrumson did not follow the procedure contained in EPTL § 5-1.1-A(d) for exercising the right of election.

Rima Krigsman's attorney, in his affirmation in support of the cross-motion, argues that there would be no demonstrable surprise or prejudice to Petitioner were the Court to grant an extension of time to file the notice of election as: [*2]-

Petitioner's former attorney acknowledged in a letter dated March 25, 2003, the existence of a potential elective share claim by Dora Avrumson; -

On or about May 9, 2003, objections verified by Dora Avrumson to the probate of Shlomo Cyngiel's will were filed with the court which included at paragraph four a claim for her right of election and; -

Dora Avrumson's former attorney in a letter dated May 19, 2003, to Petitioner's former attorney referenced Avrumson's right of election in a request that no estate properties be sold.

None of the above, however, is of any moment as it is not enough for a surviving spouse to show an intention, no matter how unequivocally evinced, to take against a will (Matter of Collins, 12 AD2d 307 [1st Dept 1961]). The right of election may not be exercised without following the required procedures for serving the estate representative, and filing the notice with the court under EPTL 5-1.1-A(d). (see Matter of Sylvester, 107 AD3d 903 [2d Dept 2013], notice of election was served on the executor, but not filed with the court, requiring spouse to petition court to extend her

time to file a late notice of election).

The right of election having yet to be exercised, the issue becomes whether Rima Krigsman, as Executor of the Estate of Dora Avrumson, can file the right of election on behalf of Dora Avrumson.

EPTL § 5-1.1-A(d)(2), permits a court under appropriate circumstances to grant an extension of time to file a notice of election. Where, as herein, more than two years have elapsed since decedent's date of death, the petition seeking an extension of time to elect must show "reasonable cause" for relief from the default in failing to file timely.

Rima Krigsman's attorney in his affirmation alleges the following as reasonable cause for allowing an extension of time to file:

That prior to the court's Decision/Order of November 30, 2012, granting the late Dora Avrumson status as the surviving spouse

of the decedent Shlomo Cyngiel, Petitioner Krigsman lacked

standing or capacity to file the spousal right of election, and

the representative of the estate of decedent Shlomo Cyngiel

contested such right of election.

This explanation is devoid of any facts which would cause the Court to exercise its discretion to permit a late filing of the notice of election. While Dora Avrumson could not petition the Court to fix and determine her elective share until it determined her status, there is nothing that prevented the serving and filing of her notice of election prior to the Court's determination of her status. [*3]

However whether or not reasonable cause for leave to file a late notice of election could be shown in this case is academic as Dora Avrumson is deceased. The law is clear that the right of election is personal to a surviving spouse and must be exercised during the lifetime of the surviving spouse. The Legislature has been deemed to have specifically and intentionally excluded the right of the estate of the surviving spouse to exercise the right of election (Matter of Fellows, 16 AD3d 995 [3d Dept 2005]). Therefore Rima Krigsman cannot file the right of election on behalf of the Estate of Dora Avrumson.

Accordingly Petitioner's motion for summary judgment is granted. Rima Krigsman's cross-motion for an order extending the time to file the right of election on behalf of Dora Avrumson is denied.

The foregoing constitutes the decision and order of the Court

_____________________

Dated:Brooklyn, New YorkHON. DIANA A. JOHNSON

July 23, 2013S u r r o g a t e