In this pending administration proceeding, petitioner Phyllis Koven (hereinafter “Petitioner”), through counsel, moves this Court to disqualify respondent Alan Silberlight (hereinafter “Respondent”) from receiving any share of the proceeds of the decedent’s life insurance policy pursuant to EPTL §4-1.1 (a) (4). Petitioner further seeks the Court’s direction pursuant to EPTL §4-1.1 (a) (4), distribution and allocation of the insurance proceeds of the $76,000.00 held by the Prudential Insurance Company of America to be made to Petitioner. Respondent, through counsel, opposes Petitioner’s motion for summary judgment, and contends that, among other things, Petitioner’s motion be denied in its entirety and discovery continue. Petitioner filed a petition for administration on December 6, 2021, seeking to have the Respondent be disqualified as a distributee under EPTL §4-1.4 due to the termination of his parental rights and abandonment of the decedent. On January 8, 2022, Family Court entered an Order freezing the life insurance policy at issue. On February 8, 2022, Respondent filed an Answer and Objection. On December 8, 2022, Petitioner served upon Respondent a Notice to Admit, and on December 28, 2022, Respondent served a response to Petitioner’s Notice to Admit. In response, Respondent does not deny that he provided no financial support to the decedent during the period from April 16, 1998, when decedent was twelve years of age, through 1997 when the decedent was twenty-one years of age. According to Respondent he, “Cannot Admit or Deny as there was a Court Order filed with the Bureau of Child Support in effect which ceased all financial payment after April 1988. Approximately 48 paystubs have been previously provided showing support payments in the years before April 1988.” In support of the motion, Petitioner argues the response regarding Respondent’s failure to provide any financial support to the decedent during the period from April 16, 1988 through 1997. In opposition, Respondent argues there are triable issues of fact as to whether Respondent’s efforts to maintain a relationship with decedent during his childhood were sufficient to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child. He further argues, that pursuant to Order of the Family Court dated April 12, 1988, all “support payments were terminated as of 3/3/1988. No arrears owed…No overpayment owed to respondent.” Summary judgment is appropriate where a movant makes a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to establish the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd. [b]), and he must do so by tender of evidentiary proof in admissible form.” On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd. [b]). Such proof must be by evidence in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v. New York, 49 NY2d 557, 562 [1980]). As to the substantive issue at bar, EPTL §4-1.4(a) provides, in pertinent part: “No distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child while such child is under the age of [21], whether or not such child dies before having attained the age of [21], unless the parental relationship and duties are subsequently resumed and continue until the death of the child * * *.” In re Emiro, 798 NYS2d 709 (Sur. 2004). Therefore, the disqualification of a parent under EPTL §4-1.4(a) is possible if either criteria is present: (1) failure or refusal to provide for the child; or (2) abandonment of the child. These two criteria are separate and distinct, and, therefore, proof of either will cause the parent to be disqualified. Id. Petitioner here has stated that her argument will focus solely on the issue that Respondent has failed to financially provide for the decedent prior to his turning twenty-one years of age. Respondent here, argues there is a New York County Family Court Order dated April 12, 1988, stating that all “support payments were terminated as of 3/3/1988. No arrears owed…No overpayment owed to respondent.” Thus, there is an issue of fact as to whether Respondent failed or refused to provide for the decedent. Accordingly, petitioner’s motion for summary judgment is denied and a kinship hearing is necessary to determine whether Respondent is disqualified from receiving a distributive share in the decedent’s estate. This matter shall appear on the Court’s calendar on Wednesday May 24, 2023, at 10:00 A.M. for scheduling of the kinship hearing. This constitutes the decision of the Court. Dated: May 15, 2023
