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
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
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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