SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

669 

CA 11-02273 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF THE PETITION OF DOROTHY E. 

GRAY TO DETERMINE THE VALIDITY OF ELECTION 

AGAINST THE LAST WILL AND TESTAMENT OF 

DONALD J. GRAY, DECEASED. MEMORANDUM AND ORDER 

------------------------------------------ 

DOROTHY E. GRAY, PETITIONER-RESPONDENT; 

 

ELSIE GARNSEY, RESPONDENT-APPELLANT. 

HISCOCK & BARCLAY, LLP, SYRACUSE (KEVIN M. HAYDEN OF COUNSEL), FOR

RESPONDENT-APPELLANT.

CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (PETER L. WALTON OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from a decree of the Surrogate’s Court, Jefferson County

(Peter A. Schwerzmann, S.), entered June 14, 2011. The decree granted

the petition and deemed valid the notice of election executed by

petitioner. 

It is hereby ORDERED that the decree so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner, the estranged wife of decedent,

commenced this proceeding, inter alia, to determine the validity of

her notice of election. Petitioner and decedent separated in the

1980s, and decedent thereafter began living with respondent, his

girlfriend, until his death in February 2008. In his will decedent

left the residuary estate to respondent, bequeathing to petitioner

only real property that he owned jointly with her. In June 2008,

approximately four months after decedent died but before letters of

administration were issued, petitioner’s attorney filed a notice of

election in Surrogate’s Court and served the notice upon Key Bank, the

executor named in decedent’s will. Key Bank, however, renounced its

appointment as executor and returned the notice to petitioner’s

attorney. The Surrogate’s Court Clerk also returned the notice of

election to petitioner’s attorney, explaining that an estate for

decedent had not yet been filed. 

In March 2009, letters of administration were issued to the son

of petitioner and decedent, and, according to petitioner, her son

agreed to serve as executor provided that there was no dispute

concerning the distribution of assets. Petitioner failed to re-file

her notice of election with the Surrogate or to serve it upon the

executor, nor did she seek an extension of time within which to do so. 
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CA 11-02273 

The attorney representing the estate also represented respondent, at

least initially, and there is no dispute that respondent and her

attorney had actual knowledge since June 2008 that petitioner sought

to exercise her right of election and had filed a premature notice of

election. In fact, respondent’s attorney engaged in detailed and

prolonged negotiations with the attorney for petitioner with respect

to the amount of her elective share. They eventually agreed upon a

specific amount, i.e., $398,970.62, and the attorney for respondent

informed petitioner’s attorney that respondent and the executor were

“getting the money together.” Despite assurances that the payment

would be forthcoming, petitioner never received her agreed-upon

elective share. 

In May 2010, respondent retained a new attorney and opposed

petitioner’s right to an elective share on the ground that petitioner

failed to file a notice of election within six months of the issuance

of letters of administration and no later than two years after the

date of decedent’s death, as required by EPTL 5-1.1-A (d) (1). 

Petitioner thereafter commenced this proceeding seeking a decree

determining that her notice of election was valid. In support of her

petition, she submitted a detailed affidavit from her attorney, who

recounted all of the dealings with respondent’s former attorney, along

with letters from her attorney to respondent’s former attorney

corroborating the assertions in his affidavit. The attorney for

petitioner attributed his failure to re-file the notice of election to

the “numerous and oft-repeated representations and assurances” of

respondent’s former attorney that payment of the agreed-upon amount of

petitioner’s elective share was imminent. 

In opposition to the petition, respondent submitted an affidavit

from her subsequently retained attorney, who lacked personal knowledge

of the relevant facts. The parties thereafter agreed that the

Surrogate would base his decision solely on the papers submitted,

thereby waiving their right to an evidentiary hearing. The Surrogate

granted the petition, concluding that respondent was equitably

estopped from challenging the notice of election on timeliness

grounds. We affirm. 

We conclude that, although petitioner did not substantially

comply with the procedural requirements of EPTL 5-1.1-A inasmuch as

she failed to file her notice of election “within six months from the

date of the issuance of letters . . . of administration . . . but in

no event [no] later than two years after the date of decedent’s death”

(EPTL 5-1.1-A [d] [1]), the Surrogate properly applied the doctrine of

equitable estoppel to enable petitioner to assert her right to an

elective share. Petitioner submitted ample evidence demonstrating

that, as a result of numerous representations from the attorney

representing the estate and respondent that her elective share rights

would be honored, she was “lulled . . . into sleeping on [her] rights”

(Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981). 

Contrary to respondent’s contention, petitioner also established that

the attorney with whom her attorney was negotiating represented

respondent as well as the estate. Notably, respondent offered no

evidence to rebut the allegations in the petition. She did not submit
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CA 11-02273 

an affidavit from herself or the attorney whom petitioner asserts

represented her during the relevant time period, nor did she dispute

any of the allegations set forth in the affidavit of petitioner’s

attorney. 

We agree with respondent that the Surrogate erred in determining

that, for the doctrine of equitable estoppel to apply, petitioner was

not required to establish that respondent intended to lull her into

inactivity (see generally Zumpano v Quinn, 6 NY3d 666, 674; Philip F.

v Roman Catholic Diocese of Las Vegas, 70 AD3d 765, 766; Murphy v

Wegman’s Food Mkts., 140 AD2d 973, 974, lv denied 72 NY2d 808). 

Nevertheless, we conclude that the record supports a finding of the

requisite intent on the part of respondent. Such a finding may be

inferred from the sworn allegations of petitioner’s attorney, which as

noted are not disputed by respondent. If respondent had not intended

to lull petitioner into inactivity, she could have set that forth in

an affidavit. We thus conclude that the Surrogate properly granted

the petition. 

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court