Decedent died intestate on January 27, 2019, survived by her husband, John Jiuditta [hereafater, Jiuditta],1 and her son from a prior marriage, Richard McElwain. Letters of administration were issued to Jiuditta on June 5, 2019. By petition verified October 31, 2020, and efiled in this court on November 3, 2020, Jiuditta seeks an order from this Court (a) “relieving [him] from default in filing the required time[ly] Notice of Election to take a share of decedent’s estate”, and (b) fixing “the period within which such election shall be made.” Decedent’s son has filed an affidavit objecting to the relief sought, and decedent’s sister, Melinda Wirtz [hereafter, Wirtz], has filed formal objections to that relief. When the parties last appeared before this Court on June 17, 2021, each was asked to file written comments on the applicability of Brash v. Richards, __AD3d__ [dec. June 2, 2021] to this case. Those writings were filed on July 1, 2021.The matter has been finally submitted, and I now find and decide as follows. (I) Jiuditta asserts that, over the course of administering his wife’s estate, he has determined that estate assets total $254,850, with debts and administration costs totalling $250,780.37. In addition, decedent had a $25,000 life insurance policy through her employer naming Jiuditta as beneficiary,2 and also had one or more California credit union accounts in excess of $200,000 of which Wirtz is the beneficiary. As Jiuditta puts it, after finally learning that the various (and substantial) testamentary substitutes were left to decedent’s sister, and the value of them, something which was “unanticipated”, “the course of the estate” “has [been] dramatically altered”, which was what led him to file the present application. Wirtz, however, asserts that Jiuditta knew soon after decedent’s death from the California credit union that he was not a beneficiary of the accounts. She also contends that any ruling in Jiuditta’s favor now could have a negative effect on herself and McElwain by “reducing the interests of decedent’s intended beneficiaries.” (II) (a) EPTL 5-1.1-A(d)(1) provides that a surviving spouse may make an election to take a share of his wife’s estate provided that such election is made “within six months from the date of letters of administration but in no event later than two years after the date of death of decedent except as provided in subparagraph 2 of this paragraph”. EPTL 5-1.1-A(d)(2) authorizes this Court, upon a showing of good cause, “to relieve” a surviving spouse of his default under EPTL 5-1.1-A(d)(1) “provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of letters and two years have not elapsed since the date of decedent’s death” (emphasis added). The estate has not yet been finally settled, so the dispute among the parties revolves around the other statutory requirements. (b) In Matter of Levin, 181 Misc 2d 868, 871 [1999], this Court [MATTINA, J.] pointed out that “[T]he determination as to whether the surviving spouse has complied with the requirement of reasonable cause rests in the sound discretion of the court (Matter of Levin, Sur Ct, Erie County, Jan. 8, 1999, Mattina, S., slip opn, at 3, citing Matter of Geltman, 194 Misc 704 [Sur Ct, Bronx County 1949]; Matter of Zweig, 145 Misc 839 [Sur Ct, Kings County 1932]. And, as we pointed out at that time, courts have quite readily found reasonable cause in situations in which uncertainty exists as to [the] extent and value of the decedent’s assets (Matter of Levin, supra, slip opn, at 4, citing, inter alia, Matter of Pollack, NYLJ, Aug. 19, 1998, at 22, col 5 [Sur Ct, Bronx County]; Matter of Matson, NYLJ, Mar. 18, 1997, at 31, col 4 [Sur Ct, Westchester County])” (emphasis added). Here, I find that, although Jiuditta knew soon after decedent’s death that there were assets of decedent’s in a California credit union, and that he was not a beneficiary of those assets, he did not know the amount of such assets. Additionally, Jiuditta did not know the complete scope and value of the estate assets and liabilities, something that did not come into sharp focus until the middle or latter part of 2020. Thus, I conclude that there is a reasonable excuse for Jiuditta’s delay in acting with respect to his statutory right of election. (c) Turning, then, to the final issue in dispute, the question is whether Jiuditta’s petition is timely. Decedent died on January 27, 2019, and letters were issued to Jiuditta on June 5, 2019. The time for making the election or seeking an extension from this Court to do so, is no more than one year from the date letters were issued and no more than two years from the date of decedent’s death. Although the two year date-of-death time limit was not exceeded here, Wirtz contends that the one year date-of-issuance-of-letters limit was. On that latter point, Jiuditta says the following: “The 12-month limitation expired on June 5, 2020. In most cases, the analysis would end there; however, ‘these are not normal circumstances.’ Lopez-Motherway v. City of Long Beach, 2021 US Dist LEXIS 48597, at *15-23 (EDNY Mar 15, 2021, No. 2:20-cv-5652 (BMC)).” Jiuditta details his argument further this way: “During the course of the 12-month limitation period the world, and in particular the State of New York, was confronted with the COVID-19 pandemic. Governor Andrew Cuomo issued Executive Order 202.8, tolling all statute of limitations. In particular, ‘[A]ny specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by procedural laws of the state is hereby tolled from the date of this executive order.’ Cherney v. Treybich, 2021 NY Slip OP 30607(U) (Sup Ct, Richmond County, 2021). Executive Order 202.8 states: NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. Exec. Order No. 202.8 (March 7, 2020). Governor Cuomo later extended the deadline in a series of subsequent executive orders. See Exec. Order No. 202.38 (June 6, 2020); Exec. Order No. 202.48 (July 6, 2020); Exec. Order No. 202.55 (Aug. 5, 2020); Exec. Order No. 202.55.1 (Aug. 6, 2020); Exec. Order No. 202.60 (Sept. 4, 2020). Ultimately, the governor set a deadline of the tolling for November 3, 2020. As set forth above, Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders”, (emphasis added). In Brash v. Richards, supra, the Appellate Division, Second Department, expressly held that the Governor’s executive orders constituted “a toll of filing deadlines” (emphasis added). The Brash Court went on to explain the following: “A toll suspends the running of the applicable period of limitation for a finite time period, and ‘[t]he period of the toll is excluded from the calculation of the [relevant time period]‘ (Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505, 132 N.Y.S.3d 224, 158 N.E.3d 93 n 8; see Foy v. State of New York, 71 Misc 3d 605 [Ct Cl]). ‘Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension’ (Foy v. State of New York, 71 Misc 3d at 608). * * * Governor Cuomo’s March 20, 2020 executive order, Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), expressly and plainly provided that the subject time limits were ‘hereby tolled,’ and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a ‘toll[ ]‘ (Executive Order [A. Cuomo] Nos. 202.67, 202.72 [9 NYCRR 8.202.67, 8.202.72]; see Foy v. State of New York, 71 Misc 3d 605; Kugel v. Broadway 280 Park Fee LLC, Jan. 28, 2021 at 17, col 2, 2021 NYLJ LEXIS 25 [Sup Ct, NY County])” (emphasis added). Here, I find that the one year date-of-issuance-of-letters time period would have expired on June 5, 2020. However, the period from March 20, 2020 to November 3, 2020 is excluded from that one year period under the Governor’s tolling orders. Thus, the 77 days from March 21, 2020 through June 5, 2020, inclusive, is added to the time on and after November 4, 2020 (when the tolling orders expired), meaning that Jiuditta had to file the present application on or before January 19, 2021, in order that it be timely. Jiuditta efiled this petition on November 3, 2020 and paid the required filing fee on November 24, 2020. Thus, I find that the petition was filed on November 24, 2020 (see generally SCPA 301 [1] [a]; see also Uniform Rules for Surrogate’s Court §207.4-a [e] [3] [22 NYCRR §207.4-a (e) (3)], and, accordingly is timely. (III) In light of the foregoing I hereby grant Jiuditta’s petition, and I direct that his notice to exercise his right of election shall be filed and served, in compliance with statutory requirements, on or before September 20, 2021. This decision shall constitute the Order of this Court and no other or further order shall be required. Dated: August 6, 2021
