ALBANY, N.Y., June 19 (Reuters) - Wading into a conflict among New York state appeals courts, a divided upstate court has held that a defect in a prenuptial agreement may be fixed through the subsequent filing of an affidavit.

Under state law, parties to a prenuptial agreement must acknowledge the pact both orally and in writing in the presence of a notary or other authorized person. Some state appeals panels have held that the failure to meet those requirements automatically invalidates a prenuptial agreement; others have held that the problem can be addressed if the parties acknowledge the pact at a later date.

The Appellate Division, Fourth Department, on Friday took the latter view, holding that the submission of an affidavit from a notary may raise factual issues about the acknowledgement for a judge or jury to decide.

Michelle Galetta last year filed for divorce from her husband, Gary Galetta, and subsequently moved for summary judgment on the ground that their prenuptial agreement was invalid. The wife claimed that the husband never orally acknowledged the agreement as required by the state Domestic Relations Law.

The husband countered by submitting an affidavit from a notary who testified that he witnessed the husband orally acknowledge the agreement.

In September, State Supreme Court Justice John Owens denied the wife's motion, and the Fourth Department on Friday affirmed.

"We ... conclude that the court properly denied that part of (the wife's) motion for summary judgment seeking a determination ... that the parties' prenuptial agreement is invalid," the court wrote in an unsigned memorandum.

"A subsequently filed affidavit from the notary who took (the husband's) acknowledgment raises a triable issue of fact," said the panel, which included Presiding Justice Henry Scudder and justices Rose Sconiers and Salvatore Martoche.

The ruling is in line with prior decisions by the Second Department but contradicts First Department precedent. In the 1997 case Matisoff v. Dobi, the Court of Appeals held that a written prenuptial agreement signed by both parties but never acknowledged was not enforceable, but specifically declined to say whether and under what circumstances an acknowledgment defect could be remedied.

In dissent, justices John Centra and Edward Carni argued that because the acknowledgment was defective, the agreement was invalid on its face. The dissenters declined to say whether such a defect could be remedied in certain cases.

Even if the defect could be fixed, "we conclude that the notary's affidavit does not establish the proper acknowledgment or even raise a triable issue of fact," the dissenters wrote.

The wife's attorney, Francis Affronti, was not available to comment. The wife has 30 days from the release of the decision to seek an appeal with the Court of Appeals.

The husband's attorney, Kathleen Reardon, could not be reached.

The case is Michelle Galetta v. Gary Galetta, New York State Supreme Court, Appellate Division, Fourth Department, No. 618.

For Michelle Galetta: Francis Affronti of Barney & Affronti.

For Gary Galetta: Kathleen Reardon.

(Reporting by Dan Wiessner)

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