The following papers were considered in this motion:

In this contested miscellaneous proceeding by Cynthia Daniel Mason (the petitioner), the surviving spouse of Marco Mason a/k/a Marco A. Mason (the decedent), to determine the validity of the exercise of her right of election, Yvonne A. Mason (the movant), as executor of the decedent's estate, moves for summary judgment seeking a determination that the petitioner has waived her right of election pursuant to a post-nuptial agreement.

The decedent died on March 7, 2011, survived by the petitioner herein and two adult daughters, namely Addis X. Mason and Nadya M. Mason. The movant is the decedent's sister. On January 5, 2012, the decedent's last will and testament was admitted to probate and letters testamentary were issued. The petitioner brought the instant proceeding on June 30, 2014. Verified answers were filed by all interested parties.The Estates, Powers and Trust Law proscribes the manner by which a spouse's right to her or his elective share can be waived. The statute requires that such waiver or release must (1) be in writing, (2) subscribed by the maker, and (3) acknowledged or proved in the manner required for the recording of a conveyance of real property. EPTL 5-1.1-A (e); Matter of Seviroli, 44 AD3d 962 (2d Dep't 2007). In the instant proceeding, the agreement provides, in relevant part, as follows:

Estate Rights. Each party hereby agrees to waive and relinquish all rights a Spouse may acquire in either party's estate upon death of either Spouse, but not by way of limitation, any and all rights of intestacy and any and all rights of election to take against decedent's will. This provision is intended to and shall serve as a waiver and release of a spouse's right of election in accordance with the requirements of the laws of this jurisdiction and any other jurisdiction.

The record reflects that the decedent and petitioner (the parties) were married on July 21, 2005, and the parties subsequently entered into a four-paged post-nuptial agreement (the agreement) in June 2006. The record further reflects that the agreement was signed by the parties: the decedent executed the agreement on June 19, 2006, before a notary public; the petitioner executed the agreement on June 20, 2006, before a different notary public; and both signatures are accompanied by a written acknowledgment by each notary. Both parties were represented by separate counsel. It is undisputed that the signatures on the agreement are authentic and there is no claim that the agreement was procured through fraud of duress.

On a motion for summary judgment, it is well-established that the movant must make a prima facie showing of entitlement to judgment as a matter of law, demonstrating that there are no material triable issues of fact. Zuckerman v City of New York, 49 NY2d 557 (1980); Alvarez v Prospect Hospital, 68 NY2d 320 (1986). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary in admissible form sufficient to establish the existence of material issues of fact which requires a trial of the proceeding. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Mere conclusions or unsubstantiated allegations are insufficient to raise triable issue of fact to defeat summary judgment. Id.

Upon the record presented, the movant has met her burden of demonstrating that there are no material issues of fact that exist and that, as a matter of law, the agreement was in writing, subscribed by the parties, and properly acknowledged, in compliance with the statutory requirements of EPTL 5-1.1-A(e)(2). The burden thus shifts to the petitioner.

In opposition, the petitioner contends that the agreement is defective because the waiver is ambiguous, the agreement was not "certified," the decedent did not initial the exhibit page that lists the petitioner's assets, and the exhibit pages that list the parties' assets appear after the signature page instead of before the signature page. None of these arguments are availing.

Contrary to petitioner's characterization, there is no "obvious ambiguity " in the agreement. A plain reading of the postnuptial agreement as a whole clearly manifests the unambiguous purpose and intent of the parties to mutually waive their right to marital property and their spousal right of election. See Gutierrez v State of New York, 58 AD3d 805, 807 (2009). Whether or not the agreement is ambiguous is a question of law, not fact, to be determined by the court. WWW Associates, Inc. v Gianconteri, 77 NY2d 157 (1990).

Further, contrary to petitioner's interpretation, the agreement is not legally defective because the specific words "certification," "certifies," or "Certification of Endorsement" do not appear in the certificates of acknowledgment by the notaries public. The petitioner either demonstrates a lack of understanding of what constitutes a legally sufficient acknowledgment, or is requiring an additional element which neither the legislature nor the judiciary has deemed necessary. As explained by the Court of Appeals in Galetta v Galetta, "[t]he purpose of the certificate of acknowledgment is to establish that these requirements have been satisfied: (1) that the signor made an oral declaration compelled by Real Property Law 292 [which provides that the signor orally acknowledge to the notary public that he or she in fact signed the document]; and (2) that the notary or other official either actually knew the identity of the signor or secured satisfactory evidence of identity ensuring that the signed was the person described in the document," 21 NY3d 186, 192-193 (2013). Both requirements were satisfied in the certificates of acknowledgment in the agreement in the instant proceeding. Petitioner has failed to raise any issues of fact to dispute that the agreement is valid and the petitioner has waived the right to exercise her right of election against the decedent's estate.

The petitioner's remaining contentions are without merit.

The movant seeks sanctions, costs, and fees pursuant to 22 NYCRR § 130-1 (c), asserting that the petitioner's proceeding is frivolous. "The Court has discretion to award costs or sanctions upon a party or attorney who engages in frivolous conduct," Matter of Rivka, 26 Misc 3d 1219, *8 (A) (Sur Ct, Kings County 2010). Conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," 22 NYCRR 130-1 (c) (1). One of the factors considered in determining whether the conduct undertaken was frivolous is whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel. 22 NYCRR 130-1.1 (c). The movant asserts that she brought to counsel for the petitioner's attention that his claims that the postnuptial agreement was defective was incorrect and uninformed, yet petitioner still commenced the instant proceeding and necessitated the bringing of this motion by the movant. The movant's characterization of the petitioner's arguments as "nonsense" may be harsh, but it is, nonetheless, accurate. This Court finds the [*2]petitioner's arguments to be wholly without merit or basis in law. Under these circumstances, an award of attorney's fees to the movant is warranted pursuant to 22 NYCRR § 130-1.1 and the petitioner is directed to pay the sum of $500 to Phyllis E. Dubrow, Esq., counsel for the movant, on movant's behalf, no later than April 30, 2015. See Mosab Construction Corp. v Prospect Park Yeshiva, Inc., 124 AD3d 732 (2d Dep't 2015). While the movant also requests costs and fees to be awarded to the children, that branch of the motion is denied as the children did not cross-move for such relief.

For all the foregoing reasons, Yvonne A. Mason's motion for summary judgment is granted and the petition is hereby dismissed.

This constitutes the decision and order of this Court.