Surrogate Diana Johnson
Decedent's executor, Cyngiel, moved for summary judgment on his petition which sought a finding that decedent's wife, Avrumson, failed to serve a notice of election during her lifetime, which then died with her. Avrumson's executor, Krigsman, cross-moved to extend the time to file the right of election on Avrumson's behalf. The court noted Avrumson did not follow the procedure within Estates Powers and Trusts Law §5-1.1-A(d) for exercising the right of election. Krigsman's attorney argued there would be no surprise or prejudice to Cyngiel if an extension was granted. Yet, the court stated it was not enough for a surviving spouse to show an intention to take against a will, no matter how unequivocally evinced. It also noted that Krigsman's explanation of a reasonable excuse for failing to timely file was devoid of any facts that would cause the court to permit a late filing of the notice of election. Further, the court stated even if a reasonable cause for leave to file a late notice of election could be shown it was academic as Avrumson was deceased. It stated a right of election was personal to a surviving spouse and must be exercised during her lifetime. Thus, Cyngiel's motion was granted, and Krigsman's cross-motion denied.
