ANN GIURDANELLA v. CHRISTINE RENZI GIURDANELLA (2026)

SHULMAN, J.

This appeal concerns whether the Surrogate properly dismissed the appellant surviving spouse Ann Giurdanella's petition as untimely under EPTL 5–1.1–A (d)(1).  The statutory deadlines are undisputed, and the Surrogate correctly recognized that the court lacked authority to extend the time for filing a spousal election more than one year after the issuance of letters testamentary.  However, there remains an issue of first impression — namely, whether appellant's petition and accompanying submissions allege facts that, if proven, could support application of equitable estoppel to preclude appellant's daughter, respondent Christine Giurdanella–Renzi, from invoking statutory deadlines she and her fiduciary allegedly caused appellant to miss.  For the reasons that follow, we conclude that they do, and we therefore reverse.

I

Appellant is the 88–year–old surviving spouse of the decedent, her husband of 64 years.  Over the course of their marriage, they acquired, rehabilitated, and operated 14 East Village buildings forming the core of a family real estate enterprise ultimately valued at more than $45 million.  Appellant handled day-to-day management while the decedent handled the financials.  Their two children include respondent and a son, Carlo.  The decedent died on December 6, 2021.

Approximately one year earlier, the decedent executed a pour-over will and created a revocable trust, later funded with his interests in the family's real estate entities.  Appellant was not informed of these actions.  Under the trust, respondent served as both executor and successor trustee.  Appellant held an income interest but lacked a unilateral right to principal distributions, which remained solely within respondent's discretion.

Following the decedent's death, appellant experienced significant medical challenges and cognitive vulnerability leading to hospitalization and rehabilitation.  During this period, the family's long-time attorney, nonparty Gregg Weiss, prepared a broad, highly customized power of attorney naming respondent as attorney-in-fact.  This document granted wide authority, with powers far beyond those typically granted in the statutory form, including the power to engage in trust related transactions.  It was brought to appellant in the rehabilitation facility, where she signed it without any discussion or explanation of its consequences.

Shortly after appellant returned home in early February 2022, respondent brought appellant the estate-related documents that Weiss had prepared, including a waiver and consent to probate and a proposed will and revocable trust for appellant (mirror image documents) similarly benefiting the estate.  Despite representing appellant and decedent's estate at the time, Weiss never provided appellant with any drafts beforehand, nor is there any indication Weiss reviewed drafts with her or discussed their legal significance.  These are just some of the facts the petition alleges that were the product of fiduciary nondisclosure and conflict.  Critically, a video recording in the record shows respondent presenting the documents to appellant, who mutely signs them while visibly medicated on Lorazepam and impaired, without reading or understanding their terms.  Probate commenced later that month, with the petition valuing probate assets below $2 million.  In March 2022, letters testamentary were issued nominating respondent as executor under decedent's will.

Despite appellant's vulnerability, Weiss acted as though he represented both parties.  During the critical six-month period following the probate decree, when appellant's right to elect was absolute, Weiss never informed appellant of that right, never explained the statutory deadline, and never disclosed that the estate he had represented as containing less than $2 million in probate assets was worth more than $45 million.  The federal estate tax return, executed and filed in February 2023, reflected this true valuation.  Appellant did not receive the trust instrument until March 2023 and did not receive a copy of the estate tax return until late 2024, during the underlying proceeding.  After appellant reached out reasonably requesting documentation to which she was entitled, Weiss, without any explanation, unilaterally terminated representation of appellant in April 2023 — shortly after the limitations period for spousal election had expired — but continued representing respondent.  Appellant subsequently revoked the power of attorney she had unknowingly granted respondent and filed a pro se Family Court proceeding alleging fraud in its procurement.

These events occurred against a backdrop of a concededly troubled relationship between appellant and respondent that seemingly deteriorated further after decedent's death.  Appellant described respondent's conduct as punitive and financially adversarial.  Illustratively, appellant's income interest in a separate marital trust containing stocks and bonds worth tens of millions of dollars is to be paid quarterly.  Using a conservative estimate of four percent income from interest, appellant would expect to receive at least $2 million from the interest earned on these investments in the two and a half years after decedent's death.  As a trustee, respondent has forwarded to appellant only about $133,000, a payout of less than 0.25% per year.

Appellant retained new counsel in September 2024 and first learned of her right to make a spousal election against the estate pursuant to EPTL 5–1.1–A. In November 2024, within six weeks of retaining new counsel, she filed her notice of election.  After respondent rejected the notice of election as untimely, appellant petitioned the Surrogate to enforce it and to compel an accounting.  Respondent moved to dismiss the petition as untimely.  In opposition, appellant argued that respondent and Weiss breached their fiduciary duties by concealing material information regarding her elective share rights and the estate's size and structure during the statutory period which would have enabled her to elect timely.  Consequently, appellant asserted that the doctrine of equitable estoppel bars respondent from asserting a statute of limitations defense.  The Surrogate granted the motion finding the election untimely and concluded that equitable estoppel did not apply.  Appellant appealed.

II

The deadlines imposed by EPTL 5–1.1–A (d) are undisputed.  Subparagraph (1) requires a surviving spouse to file a notice of election within six months of the issuance of letters testamentary and, in all events, within two years of the decedent's death.  Subparagraph (2) authorizes limited extensions for “good cause shown,” but not beyond 12 months after letters issue.  Subparagraph (3) states that the time limits are “exclusive” and “shall not be suspended or otherwise affected by any provision of law,” absent circumstances not present here.

The dissent misinterprets this statutory text solely in relation to the issue of untimeliness.  However, there is nothing in the statute's plain language to indicate that EPTL 5–1.1–A (d)(3) forecloses equitable estoppel.  As more fully discussed below, respondent advanced no such theory, and the dissent incorrectly suggests otherwise.

As an initial matter, there is no dispute that appellant's notice of election was untimely under EPTL 5–1.1–A (d)(2).  The decedent died on December 6, 2021, and letters testamentary issued on March 22, 2022.  Because appellant did not file her notice until more than 2 years and 8 months after the issuance of letters, beyond the 12–month statutory deadline, her right of election had already lapsed by the time she served the notice in November 2024.  The panel is in full agreement on this point.

Against this backdrop, we address the dissent's threshold statutory argument, which rests on a misunderstanding of the scope of what was contested before the Surrogate.1  Put simply, the dissent's reading of “exclusive” as barring equitable estoppel overlooks the settled principle that estoppel does not extend statutory deadlines but prevents a party from invoking a deadline their own misconduct caused.

III

In considering that threshold contention, the dissent's statutory argument fails because respondent never advanced the theory the dissent now independently constructs.  Although respondent cited EPTL5–1.1–A (d)(3) below, she did so only to argue untimeliness and the absence of facts supporting equitable estoppel, not to assert that the exclusivity clause itself bars equitable estoppel.  The dissent's attempt to recast respondent's citation of EPTL5–1.1–A (d)(3) before the Surrogate or on appeal as a fully developed statutory interpretation argument misstates the preservation doctrine and asserts a theory no party ever advanced.

The dissent's approach would extend preservation far beyond its settled limits, effectively treating any citation to a statute as preserving every conceivable interpretation of it.  That is not the law.  This Court has rejected efforts to advance statutory constructions devised for the first time in dissent (see Crane, A.G. v 206 W. 41st St. Hotel Assoc., L.P., 87AD3d174, 179 [1st Dept 2011] ).  And as the dissent must concede, the record is devoid of any argument by respondent articulating the statutory exclusivity theory our colleague now advances.  Preservation is a substantive constraint on appellate review, not a mere formality.  Because the statutory argument offered in dissent was never raised or adjudicated below, it cannot support affirmance.  We therefore turn to the dissent's newly created statutory theory.

On its own, the dissent introduces a new statutory interpretation argument proposing a specific legal theory and arguments that depart from the record the litigants have developed.  Under well-settled preservation principles, no appellate court may consider a legal theory that the parties themselves did not raise, let alone preserve (see Misicki v. Caradonna, 12 NY3d 511, 519 [2009] [“We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made”];  Wilson v Galicia Contr.   & Restoration Corp., 10 NY3d 827, 829 [2008], citing Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 359 [2003] [“the requirement of preservation is not simply a meaningless technical barrier to review”];  Crane, 87 AD3d at 179 [“the dissent improperly relies on an argument of its own invention”] ).

The dissent's reliance on Khusenov v. Tursunova (246 AD3d 435 [1st Dept 2026] ) is misplaced.  Khusenov concerned a purely legal argument affirmatively raised by a party for the first time on appeal, where the issue appeared on the face of the record and could not have been avoided had it been presented earlier (id. at 436).  Here, by contrast, no party, either before the Surrogate or in the briefs on appeal, asserted the statutory theory our dissenting colleague now offers for the first time.  The doctrine allowing review of an unpreserved legal argument does not empower a court to adopt a legal theory that no litigant has ever asserted.  Party presentation remains a foundational constraint on appellate review, and it forecloses reliance on a statutory interpretation introduced solely in dissent.  The dissent's invocation of Khusenov does not justify adopting a theory never argued by any party.

Although CPLR 4511 requires notice of statutes, judicial notice does not empower our dissenting colleague to introduce an unpreserved interpretation of a statute into the case.  To be clear, judicial notice of statutes does not authorize courts to construct new statutory theories that the litigants themselves did not present.  Adopting our dissenting colleague's view would erode the party presentation doctrine entirely.  For this reason alone, the dissent's statutory theory resting on EPTL5–1.1–A (d)(3) to reject the availability of equitable estoppel is procedurally improper and cannot be adopted.

The dissent's assertion that our analysis somehow nullifies statutory text or that we have disregarded CPLR 4511(a) is simply incorrect.  We apply preservation rules exactly as the Court of Appeals has directed for appellate courts.  The preservation doctrine is not judicial evasion;  it is an essential limitation on appellate review.  The dissent's contrary characterization misstates these principles and misinterprets the holding we reach.

To be clear, our dissenting colleague purports to resolve a novel issue of Surrogate's Court procedure — whether EPTL 5–1.1–A (d)(3) precludes application of the doctrine of equitable estoppel — notwithstanding that no party raised the subject before the Surrogate or us.  Neither the parties nor the Surrogate have been heard on the issue, depriving this Court of the benefit of adversarial testing.  The doctrine of preservation and principle of party presentation serve important functions in our adversarial system, including promoting the informed, orderly development of the law.  We should respect those principles (especially the party presentation principle), lest they be viewed by the bar, litigants, and the public as mere canons of convenience — invoked when we wish to avoid an issue and disregarded when we want to reach an issue.

Appeal No.

File No.

of the Estate of Robert J. Giurdanella,

Deceased.

 Petitioner appeals from an order of the Surrogate's Court, New York County (Hilary Gingold, S.), entered July 14, 2025, which, to the extent appealed from as limited by the briefs, granted respondent's motion to dismiss the petition to determine the validity of the spousal election against decedent's estate as time-barred.

To portray our adherence to the preservation doctrine as an effort to “ignore” statutory text or to treat EPTL5–1.1–A (d)(3) as a “dead letter” is unfounded and obscures the critical fact that the dissent's theory was never argued by any party and therefore cannot be the basis for affirmance.  Accordingly, we decline to adopt a statutory interpretation advanced solely in dissent and accompanied by rhetoric that diverts attention from the controlling procedural law.

Assuming our dissenting colleague's statutory argument was properly preserved, neither case law nor legislative history supports the dissent.  The dissent's categorical approach is incompatible with the very purpose of equitable estoppel and its established role in safeguarding those who are uniquely vulnerable to such misconduct.  Notably, the Fourth Department in Matter of Gray (96 AD3d 1584 [4th Dept 2012] ) allowed an equitable estoppel claim to proceed in a spousal election case, implicitly rejecting the categorical bar the dissent now proposes.

The dissent relies on Matter of Hornby (139 AD3d 1153 [3d Dept 2016] ).  Hornby, however, did not hold that equitable estoppel is categorically unavailable in this context.  There, the petitioner conceded actual knowledge of his elective share rights during the statutory period and did not allege facts supporting estoppel.  Hornby thus turned on plain text statutory requirements, not on a statutory bar to estoppel.  By contrast, appellant here alleges that she did not learn of her right of election or the magnitude and structure of the estate during the statutory period, and that she relied on fiduciaries for that information.

The dissent's reliance on Matter of McGarry (245 App.Div. 834 [2d Dept 1935], affd without op 270 N.Y. 514 [1936] ) also does not assist his position.  McGarry concerned disability-based suspension under the former Decedent Estate Law and involved judicial suspension of a statutory deadline due to an incompetent spouse's inability to act.  Equitable estoppel does not toll, suspend, or enlarge statutory periods;  rather, it is a judicially created doctrine of fundamental fairness that bars a party from invoking a deadline that its own wrongdoing induced.  Accordingly, McGarry and Hornby are doctrinally irrelevant to whether the exclusivity clause of EPTL5–1.1–A (d)(3) forecloses equitable estoppel in cases involving fiduciary nondisclosure.2  In short, equitable estoppel does not expand statutory periods;  it bars reliance on missed deadlines caused by a party's own conduct.  McGarry and Hornby therefore provide no support for foreclosing estoppel where fiduciary nondisclosure is alleged.

The 1936 legislative materials also contain nothing suggesting that the legislature intended to restrict equitable estoppel, addressing only procedural clarity for foreseeable cases like McGarry.  This absence is significant, because any intent to alter established equitable principles would ordinarily be evident in the contemporaneous record, and no such intent appears.

Moreover, nothing in EPTL 5–1.1–A indicates a legislative intent to displace these longstanding equitable principles invoked in highly fact-specific circumstances, especially in the fiduciary context.  The 1936 legislature's immediate response to McGarry to add exclusivity language was directed at increasing efficiency for foreseeable cases like McGarry, not at abolishing equitable estoppel as the dissent interprets.  As established principles of statutory construction recognize, when the legislature amends a statute and changes its wording, it is ordinarily presumed to intend a substantive change in the law, not a reaffirmation of prior practice (see McKinney's Cons Laws of NY, Book 1, Statutes § 193).  Although our dissenting colleague offers an interesting discussion of case law and legislative materials predating the 2010 amendment to EPTL5–1.1–A, that history is ultimately irrelevant to the amendment.  Subsequently, the parties on appeal appropriately restricted their focus to the 2010 legislative history of the amended statute.  Respondent contends, without basis, that the Governor “was, without question, aware” of the one-year limitation when signing the amendment, a contention appellant directly refutes.  Further, as appellant's submissions show, at least two authorities, the New York State Department of Aging and the New York State Bar Association, expressly stated positions inconsistent with the one-year limitation period, emphasizing that the amendment addressed only the outer two-year period and the discretionary good cause extension.  The legislature's own Summary Statement accompanying the bill made no mention of the one-year period following the issuance of letters testamentary.  Stated differently, neither the legislative summary nor any contemporaneous memoranda proposed that this intermediate one-year deadline and its strict application was being reinforced while expanding the timeline of spousal election for good cause.  Because the legislative history speaks solely to the two-year outer limit and the good cause extension, the dissent's conclusion that the 2010 amendment implicitly reaffirmed the one-year bar is speculative and is contradicted by the materials the parties themselves rely upon.  Consequently, the legislature expressed no intent to restrict equitable estoppel or address fiduciary misconduct.

IV

Having established that the election notice was untimely, we next consider whether, as appellant urges, equitable estoppel may nonetheless operate to bar respondent from invoking the statutory deadline, a question on which the dissent adopts a markedly narrower view.  Again, the dissent's repeated accusations that the majority has engaged in “innovations” untethered to law are misplaced.  Our analysis applies settled equitable estoppel principles long recognized by the Court of Appeals.  We do so without rewriting statutory deadlines.  The dissent's rhetoric cannot substitute for the statutory text, caselaw, or the factual record, all of which compel the conclusion that equitable estoppel may be invoked where fiduciaries conceal material information for exercising a statutory right.  The dissent's description of this application as “unprecedented” misapprehends the doctrine.  As previously stated, equitable estoppel does not extend statutory deadlines but prevents a party from invoking a deadline their own conduct caused.

We begin by recognizing that this case presents significant policy concerns involving vulnerable litigants.  The Court of Appeals recognized in Zumpano v. Quinn (6 NY3d 666, 673–674 [2006] ) that equitable estoppel is available to prevent a party from invoking a statute of limitations defense where its own affirmative misconduct caused the delay in filing.  Equitable estoppel is not a statutory tolling mechanism;  it is a judicial doctrine designed to promote fundamental fairness.  It does not suspend or enlarge a statutory period but bars a party from benefiting from conduct that impeded timely action.

The same principle was reaffirmed in Simcuski v. Saeli (44 N.Y.2d 442, 448–449 [1978] ), where the Court of Appeals held that equitable estoppel applies when a party's fraud, misrepresentation, or deception induces delay.  This doctrine prevents a party from taking advantage of a defense of limitations that its own wrongdoing produced, particularly where the parties occupy a fiduciary or confidential relationship.  Thus, Simcuski refutes the dissent's suggestion.  Likewise, in General Stencils v. Chiappa (18 N.Y.2d 125, 127 [1966] ), the Court of Appeals held that a party may not “take refuge” in a statute of limitations where its conduct prevented timely filing.  Contrary to the dissent's account, General Stencils demonstrates that concealment can foreclose reliance on a limitations period, reflecting that estoppel grounded in misconduct is long established.

Courts have been especially receptive to estoppel claims involving concealment by fiduciaries (see North Coast Outfitters, Ltd. v Darling, 134 AD3d 998, 999 [2d Dept 2015];  Matter of Watson, 8 AD3d 1092, 1094 [4th Dept 2004];  see also Matter of Orejas, 12 Misc.3d 1172[A], 2006 N.Y. Slip Op 51150[U] [Sur Ct, Bronx County 2006] [executor deemed to have concealed will from a surviving spouse until three years after the decedent's death] ).  Consistent with that, New York courts routinely apply equitable estoppel where fiduciaries fail to disclose material information necessary to exercise protected rights, and this matter fits squarely within that established line of authority.  Moreover, the principle that courts may apply equitable estoppel due to counsel's neglect, a circumstance seemingly less egregious than fiduciary nondisclosure, appears in decisions such as Matter of Sylvester (107 AD3d 903 [2d Dept 2013] [granting leave to file a late notice of election based on law office failure despite petition being filed four and a half years after the date of death and approximately three years after letters issued] ).  Where an appellate court was willing to consider such relief in a less severe case of attorney error, it would be anomalous to foreclose equitable estoppel where fiduciaries allegedly concealed core information despite their affirmative obligations of candor and disclosure.  Indeed, the dissent's position yields an untenable paradox.  It would permit equitable estoppel for ordinary attorney error while categorically denying it where fiduciaries themselves are alleged to have obstructed access to the very information required to make a timely election.  This outcome sharply diverges from established principles recognizing estoppel where a party's conduct prevents timely action.  As a result, it would be incongruous to permit equitable estoppel for attorney error while denying it where fiduciaries impede access to the very information needed to make a timely election.  Case law thus reinforces that equitable estoppel remains available as a safeguard against parties who, through silence or misconduct, impede the exercise of statutory rights.

V

Turning to this equitable estoppel claim, a party must show (1) misconduct that caused the delay;  (2) reasonable reliance;  (3) a causal connection between the misconduct and the delay;  and (4) due diligence once the impediment ceased (see Zumpano, 6 NY3d at 674–675).  The doctrine applies sparingly but may be invoked where a party was “lulled into inaction” (East Midtown Plaza Hous. Co. v. City of New York, 218 A.D.2d 628, 628 [1st Dept 1995] ) or where a fiduciary allegedly concealed material information (see Matter of Ferrara, 7 NY3d 244, 252–255 [2006];  see also Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 8–12 [1st Dept 2008] ).  Viewed correctly, New York law makes clear that due diligence begins when the concealed facts are revealed, not when personal relationships deteriorate, and the dissent's approach wrongly treats hostility as a substitute for disclosure.

In support of her petition, appellant alleged that respondent acted simultaneously as executor, trustee, and attorney-in-fact, and that Weiss, appellant's prior conflicted counsel, acted as appellant's attorney during the relevant period.  Fiduciaries in these roles owe duties of full and candid disclosure, loyalty, and care.3  Appellant alleged that neither fiduciary disclosed the existence of her elective share right, the terms of the revocable trust or the magnitude of the estate, and that the estate's principal documents were not provided until long after the statutory period had expired.  For “an 88–year–old woman with an 8th grade education without internet/access training,” the existence and implications of the spousal election were not self-evident.  In essence, interpersonal hostility does not substitute for disclosure, nor do angry messages and family conflict provide trust documents, estate information, or notice of statutory rights.

The dissent's reliance on appellant's expressions of hostility toward respondent and Weiss — including its detailed recitation of voicemail messages from the fall of 2023 — to argue that appellant failed to act with due diligence misapprehends the nature of the impediment alleged.  The obstacle described in the petition was informational, not interpersonal, because hostility does not alert a person to the contents of trust instruments, the magnitude of an estate or the legal consequences of signing documents she neither reviewed nor understood.  We disagree with the dissent's conclusion that appellant failed, as a matter of law, to act with due diligence.  Whether she exercised reasonable diligence after securing independent counsel is a fact-intensive inquiry that turns on when “the facts giving rise to the estoppel have ceased to be operational” (Simcuski, 44 N.Y.2d at 450).  In this context, under Simcuski, the equitable estoppel period begins when the plaintiff learns the material facts, not when personal trust dissipates, and the dissent's analysis disregards this controlling principle.  Such determinations are rarely suitable for resolution on a motion to dismiss, particularly where the record does not show when appellant first obtained the information necessary to recognize and assert her rights (cf.  Putter v. North Shore Univ. Hosp., 7 NY3d 548, 553–554 [2006] ).  Again, the justification for invoking equitable estoppel here is fiduciary nondisclosure, not interpersonal friction or postperiod hostility.  That the dissent also references collateral, inflammatory facts about appellant's son and appellant's alleged independent wealth only serves to distract from the narrow legal question before us.  These matters are wholly irrelevant to whether fiduciary nondisclosure prevented a timely election because they do not bear on the elements of equitable estoppel and cannot support dismissal at the pleading stage.4  At bottom, reciting family discord does not address when appellant actually obtained the information necessary to recognize her rights, which is the core inquiry for equitable estoppel.  At this stage, the question is only whether she has alleged facts that, if proven, could satisfy the elements of reasonable reliance and due diligence.  Accordingly, due diligence requires disclosure of facts, not the resolution of emotions, and the dissent misstates the legal standard by equating hostility with the end of the estoppel period.

VI

To reiterate, appellant alleged that she relied on her daughter and conflicted prior counsel during a period of medical vulnerability, that material information was concealed from her and that her age and circumstances impeded her ability to protect her statutory rights.  By contrast, the dissent minimizes respondent's fiduciary obligations.  Yet executors, trustees, and attorneys-in-fact have duties of disclosure and their failure to convey material information may support application of equitable estoppel.  These allegations raise factual issues that cannot be resolved without discovery, including whether appellant acted diligently after obtaining independent counsel in September 2024.

These circumstances also implicate the equitable concerns present when a litigant is elderly, of limited education, and dependent on others for the information necessary to preserve her rights.  Equity is particularly vigilant where a vulnerable party's inaction stems not from neglect but from the silence or deception of those on whom she reasonably relied.  Consistent with controlling authority, fiduciaries, including attorneys and agents acting under a power of attorney, owe duties of full disclosure and loyalty and may not place their own or another beneficiary's interests above the principal's (see Ferrara, 7 NY3d at 254–255;  Matter of Cooperman, 83 N.Y.2d 465, 472 [1994] ).  Recognizing equitable estoppel where fiduciaries allegedly concealed material information does not disrupt estate administration.  Instead, it simply prevents statutory deadlines from being invoked by individuals whose conduct may have impeded a surviving spouse's ability to act.  Nor does our narrow holding raise any concerns that our ruling will “destroy[ ] the predictability that the EPTL is intended to bring to estate administration.”  Equitable estoppel remains a sparingly applied doctrine, available only in fact-specific cases involving alleged fiduciary concealment.  It serves simply to ensure that statutory deadlines are not weaponized to impede a surviving spouse's rights, a result at odds with both equitable principles and the legislature's protective objectives underlying EPTL5–1.1–A.

Dismissing the petition at this early stage would reward the alleged concealment and undermine the legislature's strong policy of protecting surviving spouses.  Thus, the Surrogate's order must be reversed to permit litigation of the merits.

We regret that our dissenting colleague chooses to frame our straightforward application of preservation rules, fiduciary duty principles, and the equitable estoppel doctrine as juridical “innovations.”  The dissent's characterization of our reasoning as “innovations” misconstrues the governing standards.  Our analysis rests on established preservation principles and settled fiduciary duty doctrine.  Likewise, these characterizations distort both the governing legal standards and our reasoning, which are rooted in longstanding jurisprudence, and statutory text, and are applied to the factual allegations properly before the Surrogate — nothing more, nothing less.

We also reject our dissenting colleague's suggestion that the Court's reasoning introduces “innovations” or disrupts established principles of estate administration law.  The dissent's criticisms rest on premises we have already addressed:  the statutory exclusivity argument was not preserved;  equitable estoppel does not alter statutory deadlines and therefore is not barred by EPTL 5–1.1–A (d)(3);  and neither the statutory text nor its history supports eliminating this longstanding doctrine.  This Court applies settled principles to the allegations before us and does not modify statutory language, deadlines, or estate administration practice.

Accordingly, the order of the Surrogate's Court, New York County (Hilary Gingold, S.), entered July 14, 2025, which, to the extent appealed from as limited by the briefs, granted respondent's motion to dismiss the petition to determine the validity of the spousal election against decedent's estate as time-barred, should be reversed, on the law, without costs, the motion to dismiss denied, the petition reinstated, and the matter remanded to Surrogate's Court for a hearing on the merits.

All concur except Friedman, J. who

dissents in a sperate Opinion.

FRIEDMAN, J. (dissenting)

The straightforward question presented on this appeal is whether a competent adult spouse's untimely election to take the spousal share of her deceased husband's estate – an election made more than a year and a half after the expiration of the strict statutory deadline – can be validated under circumstances in which the governing statute (EPTL 5–1.1–A[d] ) does not authorize relief from that default.  In reversing Surrogate's Court and deciding that, notwithstanding the plain terms of the statute, the untimely election may yet be validated under the doctrine of equitable estoppel, the majority delivers itself of the following innovations in the law:

 The majority writes out of the law the statute's directive that “[t]he time limited in this paragraph for making an election is exclusive and shall not be suspended or otherwise affected by any provision of law” (EPTL 5–1.1–A[d][3] [hereinafter, subparagraph (d)(3) ] ).

 The majority treats subparagraph (d)(3) as a dead letter on the supposed ground of “lack of preservation,” even though the executor – both before the Surrogate and upon this appeal – not only raised the issue to which subparagraph (d)(3) is relevant (timeliness), but cited subparagraph (d)(3) and quoted the very same statutory language set forth above in support of her argument that the election was untimely.  According to the majority, this nullification of a legislative directive is warranted by the executor's failure to state in haec verba that subparagraph (d)(3) precludes application of equitable estoppel.  Not surprisingly, the majority cites not one case in which, in any similar situation, a legal argument based on a clear statutory directive was deemed to be unpreserved.

 The majority ignores the mandate of CPLR 4511(a) that we “take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state” by asserting that, in applying subparagraph (d)(3) as written, I am “introduc[ing] an unpreserved interpretation of a statute into the case” – even though a statute's meaning is a pure question of law and even though the only significance to this case held by subparagraph (d)(3) – which contains no substantive time limitation relevant to this case – is its prohibition of the use of extra-statutory bodies of law (such as equitable estoppel) to override the time limitations set forth in “this paragraph” (i.e., EPTL 5–1.1–A[d] ), which time limitations we are expressly directed to treat as “exclusive ” (emphasis added).

 In rationalizing its nullification of subparagraph (d)(3) on the basis of “lack of preservation,” the majority fails to apply the longstanding principle – one that members of the majority themselves have applied in recent cases – that a purely legal argument may be raised for the first time on an appeal to this Court if it “appears on the face of the record and could not have been avoided if brought to [the opposing party's] attention at the proper juncture” (Khusenov v. Tursunova, 246 AD3d 435, 436 [1st Dept 2026] ).

 Even if equitable estoppel could be applied to extend the time to make a spousal election, the majority's use of that doctrine potentially to extend the spouse's time to make an election for more than a year after the end of the circumstances giving rise to the estoppel – a period of time greater than the initial one year time limit provided by the statute – appears to be unprecedented.

 The majority treats the circumstance it believes to give rise to the estoppel – the influence supposedly exercised over the spouse by the executor (her daughter) and the lawyer chosen for the spouse by the executor – as possibly continuing to have effect for more than a year after the record establishes that such influence had come to a decisive end, as evidenced by, among other things, the termination of the spouse's relationship with the relevant attorney, the spouse's termination of the power of attorney she had given to the executor, hostile voicemails the spouse left for the executor, a legal proceeding the spouse commenced against the executor in Family Court, and the spouse's retention of other lawyers to represent her in dealing with the executor.

 Finally, the majority posits an issue of fact as to estoppel even though the spouse has not alleged that the executor, or the lawyer chosen for her by the executor, made any statement to her, upon which she relied, that could be deemed to constitute a misrepresentation of her spousal election rights, or of the size of the estate, or that they engaged in any conduct that could be deemed to constitute a concealment of any relevant fact from her.

The issue before us is whether to reverse Surrogate's Court's dismissal of the petition by petitioner Ann Giurdanella – who, as previously noted, is a competent surviving spouse – to be relieved of her default in timely exercising her right of election to take the statutory spousal share of the estate of her late husband, Robert J. Giurdanella (the decedent).  Under the plain terms of the statute, Ann's notice of election was untimely because it was filed and served long after the lapse of 12 months from the issuance of letters testamentary (see EPTL 5–1.1–A[d][2] ) to respondent Christine Renzi–Giurdanella, the daughter of Ann and the decedent.  Nonetheless, the majority reverses the order of Surrogate's Court and reinstates the petition on the theory that Ann might be able to prove that Christine is equitably estopped from invoking the statutory time limitation for making a spousal election.  I disagree.

Before exploring the merits of this appeal, I note that a troubling aspect of the majority's presentation of this case is its attempt to cast Ann as having been shortchanged, after decades of partnership in marriage and in the real estate business with the decedent, by the terms of his will and by the supposed overreaching of Christine.  As the majority would have it, we should remedy this perceived unfairness by giving Ann an opportunity to exercise her spousal right of election long after the expiration of her time to do so.  I do not believe that a balanced reading of the record supports the picture drawn by the majority.

In my view, what emerges from the record is a sad breakdown in the mother-daughter relationship between Ann and Christine.  That breach is now being exploited by Ann's son and Christine's brother, Carlo Giurdanella, a convicted felon (see People v. Giurdanella, 144 AD3d 479 [1st Dept 2016] [affirming Carlo's conviction of assault in the second degree], lv denied 29 NY3d 948 [2017] ).  Carl seeks to further alienate his mother from his sister and to gain immediate control, through his influence upon his mother, over her statutory spousal share of his father's estate, amounting to approximately $14 million, based on the estate's estimated valuation as of April 2025.  Carlo seeks to achieve this windfall for himself at a cost to all estate beneficiaries of more than $11 million in estate taxes, penalties and interest.  Needless to say, to fund the payment of the spousal share and the additional tax-related liabilities, the desirable properties owned by the estate will have to be sold off at fire-sale prices, further diminishing the value available to the estate's beneficiaries.

The majority's approach threatens the wealth that the decedent built up over decades with the assistance of Ann and Christine (but apparently not Carlo) for no good reason.  Ann, who has ample resources available to her, does not claim to lack for anything under the tax-efficient structure created by the will, in which approximately $30 million of the estate was committed to a trust of which Ann is the sole lifetime beneficiary.  More significantly, Ann's invocation of the doctrine of equitable estoppel to validate her untimely election is foreclosed by the undisputed facts established by the record and by the plain terms of the governing statute, which, as more fully discussed below, absolutely precludes extension of a surviving spouse's time to exercise his or her right of spousal election once “twelve months have ․ elapsed since the issuance of the letters [testamentary]” (EPTL 5–1.1–A[d][2] ).

To reiterate, the relief sought by the petition, if granted, would completely undo the carefully crafted terms of the decedent's will and related trust instruments, which were drawn to minimize the estate's tax liability while providing Ann with income for the rest of her life, with the principal thereafter to be divided equally between the two adult children of the marriage, Christine and Carlo.  It is undisputed, both by Ann and by the majority, that at the time Ann purported to exercise the right of election, the time for such action had long since expired, nearly three years having passed since the decedent's death and – most critically here, as more fully discussed below – approximately 30 months having passed since letters testamentary were issued to Christine (see EPTL 5–1.1–A[d] ).  I recognize, of course, that if Ann had timely exercised the right of spousal election, the consequences of her exercise of that right would not be legally relevant.  However, since the notice of election was untimely filed, it seems to me that we should consider the devastating consequences of the majority's extraordinary action.

In reversing the Surrogate and reinstating the petition, the majority creates havoc in three respects:

 As previously noted, the majority's action opens the door to the unravelling of the decedent's estate planning, triggering immediate liability of the estate for millions of dollars in additional federal and state taxes, penalties and interest.  As of April 17, 2025, the estate would face, as a result of the majority's decision, additional liability to the federal government of approximately $8.3 million and additional liability to the state of approximately $3.4 million.

(1) the termination, in April 2023, of the attorney-client relationship between Ann and Weiss, precipitated by Ann's demand that Weiss send her the originals of all of the estate planning documents that Weiss had prepared for her;

(2) Ann's signed revocation, dated June 13, 2023, of the power of attorney she had previously granted to Christine;

(3) three voicemails that Ann left for Christine, one in September 2023 and two in October 2023, in which Ann, among other things, announced that she was “so happy” that she had removed Christine as beneficiary of certain of her personal accounts, lamented that she had given birth to Christine, and informed Christine of her intention to continue to live “just to spite you and fight you and I will fight you till the end”;

(4) a letter to Ann from this Court's Attorney Grievance Committee, dated September 22, 2023, concerning a complaint against Weiss that Ann had filed, and informing her that the committee's staff had concluded that there was “insufficient basis to warrant further investigation at this time”;

(5) Ann's filing in Family Court of a family offense petition, dated November 17, 2023, seeking an order of protection against Christine, based upon her alleged interference with Ann's mail;

(6) a letter to Christine, dated May 6, 2024, from a law firm representing Ann, demanding that Christine produce all documents relating to her service as Ann's agent under the revoked power of attorney or to her service as trustee of any trust in which Ann had an interest.

 By applying the doctrine of estoppel to extend Ann's time to exercise the right of election, the majority upsets 90 years of settled estate practice in Surrogate's Court, under which, by statute, a competent spouse is conclusively precluded from such exercise “twelve months ․ [after] the issuance of ․ letters [testamentary]” (EPTL 5–1.1–A[d][2] ).  As previously noted, the legislature has declared this time limitation to be “exclusive and ․ not [to] be suspended or otherwise affected by any provision of law ” (EPTL 5–1.1–A[d][3] [emphasis added] ).  The majority asserts that Christine did not raise subparagraph (d)(3) but, as also previously noted, she most certainly did raise it, both in this Court and before the Surrogate (see Respondent's Brief, at 10;  R. 165, 235) and, in any event, a statute is subject to mandatory judicial notice, even if not requested by a party (see CPLR 4511[a] ).

 Finally, even if equitable estoppel could validly be invoked in the estate administration context, as previously discussed, the majority misapplies that doctrine by permitting its invocation far more than “a reasonable time” after the alleged basis for the estoppel – in this case, Ann's alleged reliance on Christine and the lawyer chosen for her by Christine, Gregg M. Weiss, Esq. – “ceased to be operational” (Simcuski v. Saeli, 44 N.Y.2d 442, 451 [1978] ).  In other words, no matter how one applies the estoppel doctrine here, Ann was out of time, as a matter of law, when she purported to exercise the right of election.  The record is replete with evidence – all of it undisputed and uncontradicted – establishing that Ann ceased to be influenced by Christine or Weiss much more than a reasonable time – indeed, more than a year – before the purported exercise of the right of election in November 2024.  As more fully described below, this evidence includes:

Ignoring the above factors that mandate affirmance of the dismissal of the petition, the majority focuses on a smorgasbord of irrelevancies.  For example, the majority points to the relatively modest amount ($133,000) that Christine, in her capacity as trustee of the trust of which Ann is lifetime beneficiary, distributed to Ann in the first two and a half years after her husband's death.  Contrary to the majority's implication that Ann is being impoverished by her daughter, Ann makes no claim that she lacks for anything that money can buy, and it is plain from the record that she has financial assets of her own.  Under the terms of the trust, Christine, as trustee, is required to pay Ann the “net income” of the buildings comprising the trust corpus – meaning, of course, the income left after the payment of all of the expenses of operating the properties – on at least a quarterly basis.  Ann does not allege that Christine has failed to satisfy this obligation.

In support of its claim that Ann should have received “at least $2 million from the marital trust” in the two and a half years after the decedent's death, the majority characterizes the marital trust as containing “stocks and bonds worth tens of millions of dollars.”  This assertion is, at best, misleading.  An examination of the estate tax returns and other documents in the record shows that the “stocks and bonds” to which the majority refers are the decedent's ownership interests in the closely held, nonmarketable entities that directly own the properties comprising the real estate business.  To generate a quarterly monetary return deemed sufficient by the majority, the real estate properties would have to be sold off one by one, contrary to the decedent's intentions.  Again, Ann makes no contention that Christine has ever failed to pay her the net income of the marital trust as required by the trust instrument.

Also misplaced is the majority's focus on the discrepancy between the $2 million estimate of the estate's value in the probate petition and the actual value of approximately $45 million reflected in the tax returns.  The record is devoid of any evidence that Ann knew about, or relied upon, the $2 million estimate (which, incidentally, had no effect on the filing fee;  see SCPA 2402[7] ).  In any event, as Christine explained to the court in her affirmation, the decedent's real estate businesses, which comprised about a dozen buildings in Manhattan and were worth about $40.4 million when he died, were not probate assets because they were used to fund the RJG Trust prior to his death.  It should also be noted that Ann, who (as acknowledged by the majority) alleges that she was involved in the management of the properties with her husband, surely would have known that a Manhattan real estate portfolio the size of her husband's would have a value far in excess of $2 million when the decedent passed away in 2021.

The majority assails as overly broad the power of attorney, dated January 7, 2022, that Ann granted to Christine, but, as noted, the record establishes that this power of attorney was revoked on June 13, 2023 – more than a year before Ann purported to exercise the right of election – and there is no contention that Christine took any action pursuant to the power of attorney that would have prevented Ann from timely exercising her right of election.5  Finally, the instruments relating to Ann's own estate planning that she signed at Christine's behest on February 11, 2022 (two months after the decedent's passing), as reflected in a videotape surreptitiously recorded by Carlo, have no bearing on the issues presented by this appeal because Ann does not claim that any of these instruments – all of which she subsequently revoked – would have prevented her from timely exercising her right of election.

In sum, I respectfully dissent from the majority's reversal of the Surrogate's order granting Christine's motion to dismiss Ann's petition to be relieved of her default in exercising her spousal right of election.  I would affirm the dismissal of the petition.

Factual and Procedural Background

Ann was born in 1937 and married the decedent in 1957.  Over the course of the couple's 64–year marriage, the decedent built a real estate business comprising a portfolio of about a dozen properties in Manhattan's East Village.  To Ann's knowledge, these buildings “generated millions in rental income” from residential and commercial units.  According to Ann, although the decedent “primarily handled business matters,” she acquired “pragmatic knowledge of how to operate, maintain, manage and supervise the buildings and tenants” in the portfolio “through participating and advising my husband in our day to day lives over many decades.”  In addition, the couple jointly owned two homes, one a house in Putnam Valley, New York, and the other a condominium in Highland Beach, Florida.  The record also contains evidence that, in 2020, Ann had a residence in Rego Park, New York.

The decedent passed away on December 6, 2021.  His last will and testament, dated September 16, 2020, names Christine as executor.  The will was admitted to probate, and letters testamentary were issued to Christine, on March 22, 2022.

The decedent's will directs that, upon his death, his assets pour over into the Robert J. Giurdanella Revocable Trust (the RJG Trust), created by trust agreement dated September 16, 2020.  In pertinent part, the RJG Trust provides that, upon the decedent's death, should Ann survive him, after the making of preresiduary bequests to Christine's three children, two further additional trusts are to be created and funded:  (1) a trust in an amount equal to the New York estate tax exemption, the beneficiaries of which during Ann's lifetime are to be Ann, Christine, Carlo, and Christine's children (the exemption trust);  and (2) a trust in the amount of the decedent's available generation-skipping transfer tax exemption plus the remaining assets of the RJG Trust, of which Ann is to be the sole lifetime beneficiary (the marital trust), which became the repository of the bulk of the estate.  Upon Ann's death, the remaining property of each of the exemption trust and of the marital trust is to be distributed to trusts for the benefit of Christine and Carlo in equal shares.  Upon the decedent's death, Christine became the trustee of all of these trusts.

In accordance with the terms of the RJG Trust, an election was made to treat the marital trust as a qualified terminal interest property (QTIP).  This election allows estate taxes on the property held by the marital trust to be deferred until the death of Ann, the surviving spouse (see Harris, New York Estates:  Estate Planning and Taxation § 6:55 [6th ed], citing 26 USC §§ 2056[b][7], 2044[a] [“If a QTIP election is made, the trust or property subject to the life estate qualifies for the marital deduction in the estate of the first spouse to die and is included as an asset in the estate of the surviving spouse”];  see also Matter of Feil, 27 Misc.3d 274, 275–276 [Sur Ct, Nassau County 2009] [describing the operation of a QTIP election] ).  The approximate amount of the marital deduction taken by the estate based on the QTIP election made for the marital trust was $33.1 million.  During Ann's lifetime, the net income of the marital trust is required to be paid to Ann on at least a quarter-annual basis;  on the other hand, the making of distributions from the principal of the marital trust is committed to the trustee's absolute discretion.

After the decedent's death in December 2021, Ann granted Christine a power of attorney, dated January 7, 2022.  As previously noted, the copy of this power of attorney in the record is incomplete.  The following month, on February 11, 2022, Ann signed a waiver and consent to probate of the decedent's will and a number of planning documents for her own estate, which were presented to her by Christine.  Carlo was also present and surreptitiously videotaped the signing on his phone.  Christine objected to the recording when she became aware of it.  Ann, who had recently been hospitalized and had just returned from a rehabilitation facility, appears passive in this video.  The estate planning documents that Ann signed were prepared by Gregg M. Weiss, Esq., of the firm of Gardner Weiss & Rosenblum LLP, a lawyer who also represented Christine in her capacity as estate executor.  Weiss had advised the decedent and Ann on estate matters since 2010.

As time went on, Ann adopted a more combative attitude toward Christine.  In or about early April 2023, Ann demanded the return of the originals of the estate planning documents she had signed at Christine's behest on February 11, 2022.  By letter to Ann dated April 4, 2023, Weiss, the attorney who had prepared the instruments, returned the original documents (a revocable trust, a will, and an assignment of tangible personal property).  In this letter, Weiss wrote:

“You stated that you want to revoke these documents.  In order to do so, you simply need to destroy these original documents.

“I strongly recommend that you advise Christine that you have revoked the documents and that she is no longer the Trustee of your Trust.  Once you revoke the Trust, there will be no Trustee acting for your Revocable Trust.

“Now that I am returning these documents to you, I am no longer your attorney.” 6

On June 13, 2023, Ann executed a “New York Revocation of Power of Attorney,” by which she revoked “any and all Powers of Attorney and all authority to act as my Agent” that she had previously given to Christine.

The record contains recordings of three hostile voicemails that Ann left for Christine in September and October of 2023.  In the first one, from September 16, 2023, Ann states:

“Yeah, I just got confirmation of change of beneficiary and power of attorney.  Christine Renzi has been removed as a beneficiary of these accounts.  Carlo Giurdanella is 100 percent sole beneficiary of these accounts.  Christine Renzi power of attorney has been rescinded from these accounts.  Carlo Giurdanella has been granted power of attorney over these accounts.  Isn't that great.  I'm so happy you're not going to get my money ․”

In the second voicemail, from October 2023, Ann states that she has been told by Carlo that Christine and her husband cohabited before their marriage and proceeds to castigate Christine in the following terms:

“Yeah, I can't get over what Carlo's been telling me that you lived with Peter before you got married ․ and you had the gall, the gall to walk down the aisle in white ․ What kind of person are you?  What kind of person did I give birth to?  I don't believe I gave birth to you․  I don't recognize you as my daughter.”

In the third voicemail, from October 21, 2023, Ann says to Christine:

“And another thing, I'm gonna live.  I'm gonna live just to spite you.  I'm gonna live the next four years which makes me 90.  Just to spite you I'm gonna live.  Do you understand that?  I'm gonna live just to spite you and fight you and I will fight you to the end.”

By letter to Ann dated September 22, 2023, this Court's Attorney Grievance Committee responded to a complaint that Ann had filed against Weiss, the attorney who had drafted the estate planning documents that Ann had signed on February 11, 2022.  The letter informed Ann that, after a review, the committee's staff had concluded that “there is an insufficient basis to warrant further investigation at this time.”

In November 2023, Ann, apparently advised by an attorney named Samuel M. Feldman, Esq., commenced a Family Court proceeding against Christine, based on an allegation that Christine had interfered with Ann's receipt of her mail.  The date of Ann's petition is November 17, 2023.  While the majority asserts that Ann, in her Family Court petition, “alleged fraud” in the procurement of the power of attorney, the petition alleges only that “Christine had me sign a Power of Attorney when I had no capacity to do so.”  Ann also admitted in the petition that she had revoked the power of attorney on June 13, 2023.

By letter to Christine dated May 6, 2024, Lewis and Garbuz, P.C. (L & G), a law firm retained by Ann, demanded that Christine produce all documents relating to the business she conducted with or on behalf of Ann and all documents relating to Christine's actions in her capacity as trustee of trusts in which Ann had an interest.  The L & G letter accused Christine of, among other things, “engag[ing] in several transactions that constitute self-dealing and ․ exceed[ing] any authority that you purport to have.”

On November 14, 2024, Ann's present counsel served on Christine, and filed in Surrogate's Court, Ann's notice of spousal election, dated October 25, 2024, which states:  “I hereby elect to take my share of the decedent's estate to which I am entitled pursuant to EPTL 5–1.1–A.” The notice was served and filed:

 more than 2 years and 11 months (35 months) after the decedent's death (December 6, 2021);

 more than 2 years and 7 months (31 months) after the issuance of letters testamentary to Christine (March 22, 2022);

 more than 19 months after the termination of the attorney-client relationship between Weiss and Ann (April 4, 2023);

 17 months after Ann revoked the power of attorney she had granted to Christine (June 13, 2023);

 more than 13 months after the date of the Attorney Grievance Committee's letter to Ann declining to further investigate Ann's complaint against her former attorney, Weiss (September 22, 2023);

 more than one year after Ann left the hostile voicemail messages for Christine that are included in the record (September and October 2023);

 about one year after the date of the petition Ann filed against Christine in Family Court (November 17, 2023);  and

 seven months after the date of the hostile and accusatory letter L & G sent to Christine on Ann's behalf (May 6, 2024).

Christine, through her counsel, responded to Ann's notice of election with a notice of rejection, dated November 19, 2024, stating that Ann's notice of election “was not filed within the time period required by New York [EPTL] Section 5–1.1–A(d)(1).”

On November 22, 2024, Ann filed in Surrogate's Court a petition to determine the validity of her purported spousal election.  The petition asked that the late election be validated for “good cause,” pursuant to EPTL 5–1.1–A(d)(2), on the ground that the untimeliness was due to “law office failure” on the part of Weiss, Ann's former counsel (who, as the petition admitted, had ceased to be Ann's lawyer in April 2023), who allegedly failed to advise Ann of her right of election.

Christine moved to dismiss the petition on the ground of untimeliness under the provisions of EPTL 5–1.1–A(d), including the direction of subparagraph (d)(3) that the time limits set forth in paragraph(d) are “exclusive and shall not be suspended or otherwise affected by any provision of law.”  In opposition to the motion to dismiss, Ann raised the doctrine of equitable estoppel, claiming that her failure to timely exercise her right of election was the result of Christine's undue influence and Weiss's conflict of interest.  In reply, Christine brought to the Surrogate's attention the matters enumerated above showing that Ann had ceased to be under the influence of Christine or Weiss more than a year and a half before she filed the notice of election, had remained hostile to Christine throughout the ensuing period, and had been advised by at least three attorneys independent of Christine during that time (Feldman, L & G and her present counsel).

In addition, Christine, in her personal affirmation, explained to the Surrogate the reality of the situation as she understood it (paragraph numbers omitted):

“[W]hile I understand that it is not directly relevant to the issues currently presented to this Court, I wish for the Court to understand that my mother's ostensible allegations and complaints are precipitated by her son (my brother) Carlo Giurdanella.  My mother is a victim of Carlo's predation.

“As I understand it, my father carefully crafted and chose his estate plan for tax efficiency, and it reflects his desire to preserve his legacy, provide for his wife, and treat his children equally and fairly.  My mother is the lifetime beneficiary of my father's Trust, and wants for nothing.  Upon my mother's death, Carlo and I will receive what remains in the Trust in equal beneficial shares.  Estate tax was largely deferred until my mother dies.  My father's Will and Trust confirm that he wanted to ensure his wife's comfort for her remaining days, wanted his children to share equally in his bounty upon the death of his wife, and wanted me to steward his Estate and the Trust as the most responsible family member available to serve as a fiduciary.  I worked with my father in managing his real property for decades prior to his death and am uniquely qualified and experienced to continue to do so.

“Carlo is a convicted felon.  Largely reliant on our mother for support, Carlo serially manipulates my mother, who naturally pities and laments the life that her only son has made for himself.  This proceeding is part of Carlo's overall effort to remove assets safely held in Trust for our mother, into our mother's hands, outright, so that Carlo can steer those assets exclusively to himself, either by lifetime transfers, or by dictating [Ann's] estate plan, through his continued manipulation.  Apparently, it is not enough for Carlo to receive one-half of the benefit of our father's estate upon our mother's death.  Carlo wants more than the one-half our father set aside for him, and he wants as much as he can get as soon as he can get it.  Carlo is preying on our elderly mother in defiance of our father's estate plan.”

By decision and order entered July 14, 2024, Surrogate's Court granted Christine's motion to dismiss the petition.  The Surrogate wrote:

“Here, Ann filed her notice of election and commenced this proceeding in November 2024, two years and eight months since the issuance of letters testamentary.  Thus, under the plain terms of EPTL 5–1.1–A, her request for relief is time-barred.  Further, since more than twelve-months [sic] have elapsed since the issuance of letters testamentary, this Court is without discretion to relieve Ann of her default [citations omitted].

“In opposition to Christine's showing that the petition is time-barred, Ann seeks to invoke, for the first time, the extraordinary remedy of equitable estoppel.  She argues that even if her claim is deemed time-barred under EPTL 5–1.1[–A], Christine is estopped from asserting the statute of limitations as a defense because it was her and her attorney's own actions which caused the delay․

“In support of her argument, Ann alleges that in February 2022, she executed documents waiving and consenting to the probate of decedent's will and executed her own will and trust (which were subsequently revoked).  The documents were prepared by Gregg Weiss, Esq., allegedly at Christine's behest, and Ann now claims that she did not understand what she was signing.  However, even if the Court accepts these allegations as true, they are irrelevant.  The documents Ann executed in February 2022 bear no connection to her right to timely elect against the estate and she fails to show how any of these documents impeded her ability to do so.”

The Surrogate also rejected Ann's argument that the alleged failure by Christine and Weiss to advise her of her right of spousal election could provide a basis for application of equitable estoppel.  The court noted that no authority was cited for the proposition that a holder of a power of attorney becomes obligated to give the principal legal advice.  As to Weiss, the court observed that “Ann's relationship to Mr. Weiss terminated in April 2023, nineteen months before she attempted to elect against the estate by commencing this proceeding and she has failed to make any showing of due diligence in bringing her claim.”  In this regard, the court quoted the Court of Appeals' statement that

“[d]ue diligence on the part of the plaintiff in bringing an action is an essential element for the applicability of the doctrine of equitable estoppel ․ [and] the burden is on the plaintiff to establish that the action was brought within a reasonable time after the facts giving rise to the estoppel have ceased to be operational” (Simcuski, 44 N.Y.2d at 450–451).

Discussion

The majority concedes, as previously noted, that Surrogate's Court correctly determined that Ann's notice of election was untimely under EPTL 5–1.1–A(d)(1).  The majority further concedes that Surrogate's Court correctly determined that it had no power to relieve Ann of her default under EPTL 5–1.1–A(d)(2), even upon a showing of “good cause,” because the notice of election was not filed until November 2024, more than 12 months – in fact, about 32 months – after the letters testamentary had been issued in March 2022.  Nonetheless, the majority reverses the dismissal of the petition to validate the untimely spousal election on the theory that, based on the allegations of the petition, Christine may be shown to be equitably estopped to invoke the time limitations of EPTL 5–1.1–A.

The majority is wrong, for two independent reasons.  First, the legislature has declared that the time limitations for the exercise of the right of spousal election set forth in paragraph (d) of EPTL 5–1.1–A are “exclusive and shall not be suspended or otherwise affected by any provision of law” (EPTL 5–1.1–A[d][3] ).  This provision – which, to reiterate, Christine has invoked both before the Surrogate and upon appeal, and has no possible relevance to this case other than its preclusion of the application of extra-statutory bodies of law to override the time limits of EPTL 5–1.1–A(d) – renders inapplicable in this context the equitable principles that sometimes override statutes of limitations in ordinary, bilateral litigation.  Further, contrary to the majority's unsupported assertion, nothing in the 2010 amendment to EPTL 5–1.1–A indicates that the legislature intended to change the absolute nature of the one-year-from-issuance-of-letters deadline for making a spousal election.

Second, even if the doctrine of equitable estoppel could override the time limitations of EPTL 5–1.1–A(d) – which it cannot – the majority misapplies that doctrine here, where the undisputed facts establish, as a matter of law, that Ann – who does not allege anything done by Christine or Weiss to conceal or misrepresent her spousal election rights – failed to file her notice of election “within a reasonable time after the facts giving rise to the estoppel have ceased to be operational” (Simcuski, 44 N.Y.2d at 450).  Indeed, the record establishes that “the facts giving rise to the estoppel” (Christine's and Weiss's supposed influence over Ann) ended well over a year before the notice of election was filed in November 2024 – 19 months if measured from the end of Ann's attorney-client relationship with Weiss in April 2023, and 17 months if measured from Ann's revocation of Christine's power of attorney in June 2023.  Thus, inexplicably, the majority's reinstatement of the petition retroactively grants Ann more time to elect to take her spousal share, measured from the end of the supposed basis for the estoppel, than she had when the clock on her exercise of that right originally began to run upon the issuance of the letters testamentary.

I. The Undisputed Untimeliness of Ann's Notice of Election

I begin by setting forth the relevant provisions of EPTL 5–1.1–A:

“(d) Procedure for exercise of right of election.

“(1) An election under this section must be made within six months from the date of issuance of letters testamentary ․ but in no event later than two years after the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph․

“(2) The time to make such election may be extended before expiration by an order of the surrogate's court from which such letters issued for a further period not exceeding six months upon any one application.  If a spouse defaults in filing such election within the time provided in subparagraph (1) of this paragraph, the surrogate's court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, 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 the letters, and two years have not elapsed since the decedent's date of death, in the case of initial application;  except that the court may, in its discretion for good cause shown, extend the time to make such election beyond such period of two years.  An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such person and in such manner as the surrogate may direct․

“(3) The time limited in this paragraph for making an election is exclusive and shall not be suspended or otherwise affected by any provision of law, except that the surrogate may, in his or her discretion, permit an election to be made in behalf of an infant or incompetent spouse at any time up to, but not later than, the entry of the decree of the first judicial account of the representative of the estate, made more than seven months after the issuance of the letters” (emphasis added).

First, it cannot be denied that Ann failed to comply with the time limitations set forth in subparagraph (d)(1), as she filed her notice of election in November 2024, more than six months after the issuance of the letters testamentary in March 2022, and more than two years after the date of the decedent's death in December 2021.

Next, it is equally undeniable that Ann's petition was filed too late to be eligible for any relief under subparagraph (d)(2).  The petition was filed long after Ann's time to make an election under subparagraph (d)(1) had expired, so no relief is available to her under the first sentence of subparagraph (d)(2).  Neither is Ann eligible for relief under the second sentence of subparagraph (d)(2), as she filed her petition more than “twelve months ․ [after] the issuance of the letters” (see e.g. Matter of Brookes, 9 A.D.2d 927, 928 [2d Dept 1959], affd 9 N.Y.2d 840 [1961] [“More than 12 months having elapsed subsequent to the issuance of letters testamentary, the Surrogate had no power to relieve respondent of his default in filing and recording his notice of election”] ).7

As to the two-year time limit from the date of the decedent's death, the second sentence of (d)(2), as amended in 2010 (see L 2010, ch 545, § 1), permits the court, “in its discretion for good cause shown,” to “extend the time to make such election beyond such period of two years.” 8  However, the statute does not authorize the court, even upon a showing of good cause, to extend the time to make an election beyond the twelve-month time limit from the date of the issuance of letters testamentary.  As stated by the Third Department:

“Although EPTL 5–1.1–A(d)(2) provides language allowing a court to relieve a spouse of his or her failure to meet a separate condition precedent – that ‘two years have not elapsed since the decedent's date of death’ – it provides no similar language permitting a court to excuse the failure to satisfy the condition precedent related to the timeliness of seeking election after the issuance of letters” (Matter of Hornby, 139 AD3d 1153, 1154 [3d Dept 2016] [reversing an order granting a petition for leave to exercise the right of election more than nine years after the issuance of letters testamentary];  see also Matter of Nieczaj [Guy], 67 Misc.3d 1213[A], 2020 N.Y. Slip Op 50529[U], *2 [Sur Ct, Orange County 2020] [same] ).9

Leading commentaries on the EPTL are in accord (see 1 Harris N.Y. Estates:  Probate Admin.   & Litigation § 9:108 [6th ed] [“the Surrogate's authority to extend the two year period ‘for good (cause) shown’ has no application once the 12 month period from the issuance of Letters lapsed.  In other words, the court has no authority to extend the 12 month limitation”];  Margaret Valentine Turano, 2016 Supp Practice Commentary, McKinney's Cons Laws of NY, EPTL 5–1.1–A [“the court can relieve (a spouse) of default if twelve months have not passed since the court issued letters to the fiduciary of the estate.  The 2010 amendment to this statute gives the court discretion to extend the two-year time limit from the date of decedent's death, but not to extend this one”] ).

Finally, as previously noted, subparagraph (d)(3) – in language that has been part of New York statutory law since 1936, as explained more fully under the next heading – declares:  “The time limited in this paragraph [i.e., paragraph (d) ] for making an election is exclusive and shall not be suspended or otherwise affected by any provision of law ” (emphasis added).  While an exception is set forth immediately thereafter, that exception applies only to “an infant or incompetent spouse” and has no relevance to the present case.

II. The EPTL Prohibits the Application of the Doctrine of Equitable Estoppel to Extend the Time to Make a Spousal Election Beyond One Year After the Issuance of Letters Testamentary

The majority, in acknowledging that “the election notice was untimely,” essentially agrees with the foregoing analysis of the time limits for making a spousal election set forth in EPTL 5–1.1–A(d), including the conclusion that the statute, by its plain terms, did not authorize the Surrogate, and does not authorize this Court, to extend Ann's time to make an election beyond one year after letters testamentary were issued to Christine (see Hornby, 139 AD3d at 1154).  That deadline indisputably passed in March 2023, more than a year and a half before Ann filed her notice of election in November 2024.  Nonetheless, the majority – incorrectly characterizing the question as one of “first impression” – holds that Ann may achieve the very same result through the expedient of placing the label of “equitable estoppel” on the “good cause” invoked in support of the request for the extension.  The majority justifies its use of the doctrine of equitable estoppel to override the statutory time limitation for making a spousal election by analogy to the occasional use of the same doctrine to override one of the statutes of limitations set forth in article 2 of the CPLR governing the assertion of a cause of action by one party against another (see Simcuski, 44 N.Y.2d at 448–449 [medical malpractice and fraud];  General Stencils v. Chiappa, 18 N.Y.2d 125, 127–128 [1966] [conversion] ).  A spousal election, however, is governed not by CLPR article 2 but by the time limitations of EPTL 5–1.1–A(d), which – unlike those of CPLR article 2 – have been declared by the legislature to be “exclusive and ․ not [to] be suspended or otherwise affected by any provision of law” (EPTL 5–1.1–A[d][3] ).  Thus, the majority's application of equitable estoppel in this context defies the plain meaning of the governing statute and the legislative intent in adopting that language, as explained below.  As I will demonstrate, the majority is flatly wrong in asserting that “nothing in EPTL 5–1.1–A indicates a legislative intent to displace ․ equitable principles” from overriding the time limitations of EPTL 5–1.1–A(d) on the exercise of the right of spousal election.10

Initially, I address the majority's contention that subparagraph (d)(3) should not be given effect – in spite of the fact that Christine, in arguing that the notice of election was untimely, cited that provision, and quoted the relevant statutory language, before the Surrogate and before this Court – “because [Christine] never advanced the theory the dissent now independently constructs.”  This is just not so.  As noted at the outset of this writing, the only possible relevance subparagraph (d)(3) could have to this case is as a bar to the application of any body of law outside the statute to “suspend[ ] or otherwise affect[ ]” “the time limited in this paragraph for making an election,” which time limitation the legislature declared to be “exclusive.”  Subparagraph (d)(3) itself does not contain any substantive time limitation that could apply to this case (since Ann is neither an infant nor an incompetent), so, contrary to the majority's assertion, it is only relevant to the “untimeliness” issue insofar as it precludes using legal principles from outside the statute to vary the statute's time limitations.  Still less could Christine have cited subparagraph (d)(3) to “argue ․ the absence of facts supporting equitable estoppel,” since (d)(3) says nothing about the elements of an equitable estoppel claim.  Moreover, the meaning of subparagraph (d)(3) is plain on its face, and the implication of its language for this case was obvious.  Christine having raised the issue of the timeliness of the notice and, as part of that argument, having cited subparagraph (d)(3) and quoted it in relevant part, there was no need for her counsel to do more to connect the dots for the benefit of the Surrogate or this Court.

On this record, it is untenable for the majority to suggest that “the dissent's theory was never argued by any party” or that our consideration of this issue would amount to “blindsiding [the] litigants” (quoting Misicki v. Caradonna, 12 NY3d 511, 519 [2009] ).  Thus, the majority could not be more wrong than it is in asserting that “no party raised the subject [of the effect of subparagraph (d)(3) on this case] before the Surrogate or us.”  The majority's claim that “the record is devoid of any argument by [Christine] articulating the statutory exclusivity theory” similarly rings hollow when one considers that Christine argued to the Surrogate that “the time limit [of the statute] is ‘exclusive and shall not be suspended or otherwise affected by any provision of law ’ (EPTL 5–1.1–A[d][3] )” (emphasis added).  And contrary to the majority's assertion, I certainly do not concede that the record is “devoid” of this argument.

Although the majority claims to “apply preservation rules exactly as the Court of Appeals has directed,” it cites no case, from any court, in support of its nonpreservation theory where, as here, a party, both before the nisi prius court and upon appeal, (1) raised the issue governed by a statutory provision, (2) cited the statutory provision, and (3) quoted the precise statutory language relevant to the issue.  Contrary to the majority's accusation, nothing I write deprecates “[t]he preservation doctrine ․ [as] judicial evasion.”  It is the majority, rather, that misapplies the principles of preservation to avoid a result mandated by statute.  Moreover, my approach treats the citation and quotation of a statute as preserving the statute's plain meaning – a question of law appropriately determined by the court – not, as the majority incorrectly posits, “every conceivable interpretation of [the statute].” 11

As previously noted, the majority sidesteps CPLR 4511(a) – which provides that “[e]very court shall take judicial notice without request of ․ public statutes ․ of every state” (emphasis added) – by asserting, without support, that “judicial notice does not empower our dissenting colleague to inject an unpreserved interpretation of a statute into the case.”  As just discussed, however, the interpretation of subparagraph (d)(3) that the majority accuses me of “introducing ․ into the case” is simply the plain meaning of the statute and the only possible significance of the provision to the matter before us – and the majority does not suggest any possible alternative meaning.  Even if the litigants had misinterpreted a statute (and there has been no such misinterpretation), the court would not be bound by their misinterpretation where the misinterpretation presents a pure matter of law, as is the case here.  Contrary to the majority's assertion that “there is nothing in the statute's plain language to indicate that EPTL 5–1.1–A(d)(3) forecloses equitable estoppel,” that is precisely the plain meaning of the legislature's directive that the statute's time limits are “exclusive” and not to be “suspended or otherwise affected by any provision of law” (EPTL 5–1.1–A[d][3] ).  Again, other than by impermissibly interpolating an unwritten term into the statute (as discussed below), the majority does not explain how the application of equitable estoppel could possibly be compatible with this language.

Indeed, it is well established that under CPLR 4511(a), taking judicial notice of an indisputably applicable statute is appropriate even if the parties themselves have not brought the statute to the court's attention (see Sweeney v. Bruckner Plaza Assoc., LP, 20 AD3d 371, 372 n 1 [1st Dept 2005], citing Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 115 [1956] ), or if a party raises the statute for the first time on appeal (see Gessin v. Throne–Holst, 134 AD3d 31, 35 [2d Dept 2015], lv dismissed 26 NY3d 1094 [2016] ).  Under CPLR 4511(a), once Christine raised the issue of the timeliness of Ann's notice of election, the Surrogate and this Court would have been obligated to apply subparagraph (d)(3), even if Christine had failed to cite and quote that provision herself – and, to reiterate, she did not fail to do that.  While the majority places much stress on what it calls “the party presentation doctrine,” it overlooks the fact that the legislature has limited that doctrine by directing that courts “shall take judicial notice without request of ․ public statutes” (CPLR 4511[a] ).

Moreover, as the application of subparagraph (d)(3) to this case presents a pure issue of law, which can be resolved without any factual inquiry, it could be raised for the first time on appeal to this Court under the rule that a legal argument can be raised for the first time on appeal if it “appears on the face of the record and could not have been avoided if brought to the [opposing party's] attention at the proper juncture” (Khusenov, 246 AD3d at 436;  see also Di Giulio v. New York City Tr. Auth., 250 AD3d 620, 621 [1st Dept 2026];  Thomas v Concourse Rehabilitation & Nursing Ctr., Inc., 244 AD3d 552, 553 [1st Dept 2025];  Matter of Chen, 243 AD3d 446, 447–448 [1st Dept 2025] ).  The majority's attempt to distinguish Khusenov, while ignoring the other cases cited above (which are just a handful of the legion of cases that could be cited for the same proposition) falls flat, as Christine has indeed “affirmatively raised” the legal argument in question and, even if she had not done so, the issue does indeed appear on the face of the record, could not have been avoided if timely raised (as it was), and is determined by a statute of which we are bound to take judicial notice.12

It is understandable that the majority places the weight it does upon its meritless contention that the issue of the effect of subparagraph (d)(3) is unpreserved, because the majority's attempt to reconcile subparagraph (d)(3) with the application of equitable estoppel in this context is equally meritless.  To begin, I note that the majority, in holding that equitable estoppel can override the time limits of EPTL 5–1.1–A(d), violates the cardinal rule that a statute must be construed so as to give force and effect to every part, and so as to avoid rendering any provision a nullity or surplusage (see Nadkos, Inc. v Preferred Contrs.  Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 9 [2019];  Kimmel v. State of New York, 29 NY3d 386, 393 [2017];  Matter of Kamhi v Planning Bd. of Town of Yorktown, 59 N.Y.2d 385, 391 [1983];  see also Matter of Jun Wang v. James, 40 NY3d 497, 503 [2023] [“All parts of a statute are intended to be given effect and a statutory construction that renders one part meaningless should be avoided”] [brackets and internal quotation marks omitted] ).  As the Court of Appeals stated many years ago, a court must “proceed[ ] ․ upon the presumption that the Legislature did not deliberately place in the statute a phrase which was intended to serve no purpose” (People v. Dethloff, 283 N.Y. 309, 315 [1940] ).  In disregard of these admonitions, the majority, by allowing equitable estoppel to override the time limitations of EPTL 5–1.1–A(d), treats as a nullity the command of EPTL 5–1.10A(d)(3) that those time limitations are “exclusive and shall not be suspended or otherwise affected by any provision of law.”  Under this statutory language, equitable estoppel – regardless of how it might affect the operation of the statute of limitations in an ordinary lawsuit – cannot “suspend[ ] or otherwise affect[ ]” the time limitations of EPTL 5–1.1–A(d).  The majority errs in ignoring this statutory directive.

In an attempt to escape the difficulty posed for its position by subparagraph (d)(3), the majority asserts that “[e]quitable estoppel is not a ‘provision of law,’ “ as if the fact that the doctrine has been created by courts of equity rather than by legislative enactment makes any difference to the plainly expressed legislative intent to have the time to elect of a competent and adult surviving spouse terminate conclusively upon the lapse of one year from the issuance of letters.  The majority also ignores the declaration of subparagraph (d)(3) that “the time limited in this paragraph for making an election is exclusive ” (emphasis added).  The time limitations of EPTL 5–1.1–A(d) could not be “exclusive” if they were (like ordinary statutes of limitation) subject to being overridden by extra-statutory bodies of law, such as equitable estoppel.  “The term ‘exclusive’ is commonly defined ‘solely,’ ‘wholly,’ ‘only,’ ‘apart from all others' “ (People ex rel. Divico v. Adams, 264 App.Div. 315, 317 [1st Dept 1942] [holding that where the statute under which the relator was convicted provided that the punishment specified by the statute “shall be exclusively controlling,” the relator could not in addition be sentenced to an indefinite term in a reformatory, since the statutory language was “free from ambiguity and the meaning cannot be disregarded”] ).  The majority treats the word “exclusive” in subparagraph (d)(3) as meaningless, depriving it of any effect, in direct contravention of binding principles of statutory construction that forbid us to “read the operative language ․ out of ․ [a] [statutory] provision” (Wang, 40 NY3d at 503).

At a few points in its opinion, the majority argues that subparagraph (d)(3) does not bar the application of equitable estoppel in determining the timeliness of the making of an election because equitable estoppel does not “extend” or “expand” statutory time limitations but merely prevents a party from invoking the time-bar defense.  This is a distinction without a difference for purposes of subparagraph (d)(3), which instructs that the time limited by paragraph (d) for the making of an election “shall not be suspended or otherwise affected by any provision of law” (EPTL 5–1.1–A[d][3] ) (emphasis added).  Plainly, if it is argued that an executor is equitably estopped to object to an election on the ground that it is untimely under EPTL 5–1.1–A(d), equitable estoppel is being invoked to “affect[ ]” the statutory time limits.  Certainly, a time limitation that is rendered ineffective by a legal doctrine is “affected” by that doctrine.  I cannot see how the majority can contend otherwise.

The majority asserts that this case is one of “first impression” concerning the interplay between the time limitations for making a spousal election against an estate, on the one hand, and, on the other hand, extraneous equitable principles that, in a proper case, may displace the operation of a statute of limitations applicable to an ordinary lawsuit.  Not only is this incorrect, but the 90–year–old case that addressed an issue substantially similar to the one presented here reached the same answer as does the majority, and was promptly overruled by legislation enacting the statutory language now found in EPTL 5–1.1–A(d)(3) that the majority essentially reads out of the statute.

In Matter of McGarry (270 N.Y. 514 [1936], affg 245 App.Div. 834 [2d Dept 1935], revg 155 Misc. 467 [Sur Ct, Kings County 1935] ), the Court of Appeals affirmed, without opinion, an order of the Appellate Division, Second Department, that essentially validated the exercise of the right of spousal election on behalf of an incompetent surviving spouse, for whom a committee was not appointed until more than six months after the issuance of letters testamentary (see 155 Misc. at 468).13  The Second Department decision applied the rule of Murphy v. Village of Fort Edward (213 N.Y. 397 [1915] ), under which the performance of a condition precedent to a person's assertion of a right is excused while the person is physically or mentally unable to perform it (see id. at 402 [“In this state the maxim that the law does not seek to compel a man to do that which he cannot possibly perform has been made the basis for the principle that physical and mental inability to comply with a statutory provision of the kind under consideration excuses the noncompliance”] ).

The Legislature responded to McGarry with alacrity.  On March 17, 1936, less than two months after the Court of Appeals affirmed the Second Department's McGarry decision, the following language, in pertinent part, was added, by L 1936, ch 114, to former Decedent Estate Law § 18(7), the provision that then governed the procedure for the exercise of the right of spousal election (the language most pertinent to this appeal is italicized):

“If a spouse shall default in filing such election within six months after the date of issuance of such letters, such surrogate's court may relieve the spouse from such default and authorize the making of such election within a period to be fixed by order, provided no decree settling the account of the fiduciary has been made and provided further that twelve months have not elapsed since the issuance of letters ․  The limitations in this section regulating the time within which an election must be made are exclusive.  No provision of law suspending or affecting the operation of rules of limitation shall be applicable to the time of making an election but the surrogate may, in his discretion, permit an election to be made in behalf of an infant or incompetent spouse at any time up to but not later than the entry of the decree on the first judicial account of the permanent representative of the estate made more than seven months after the issuance of letters” (emphasis added).

The note appended to the bill enacting the amendment, as distributed to the legislators, gives, in pertinent part, the following explanation of the intention behind the proposed amendment:

“It was supposed [by the commission that drafted former Decedent Estate Law § 18 as originally enacted in 1929] that the section made inapplicable all provisions of the civil practice act and of any other law which suspended the running of the statutes of limitation while certain disabilities exist.  It was felt that the case of the incompetent spouse or the infant spouse who failed to elect in time would be so rare as to warrant a disregard of possible injustice in an isolated case in order to secure the major objective of the prompt ascertainment of the shares of the persons interested in an estate and the speedy distribution thereof.  The surrogates in several counties ruled in matters before them that the short statute [i.e., six months from issuance of letters] applied.  However, in the recent case of Matter of McGarry (N.Y.L.J. Jan. 22, 1936) the Court of Appeals, in a case of popular hardship, affirmed a holding that the short statute did not apply.  That court wrote no opinion.  The case leaves undecided the question whether the provisions of the civil practice act which suspend the running of statutes of limitation are made applicable generally to an election by a surviving spouse.  If they have been made applicable the final winding up of estates will be much hampered whenever any doubt exists as to the competency of a surviving spouse or whenever conditions (such as imprisonment of a spouse) exist which may keep open the right to elect against a will.  The amendment proposed makes it clear that in the administration of estates all questions of right to election are foreclosed at least when the decree is made in an accounting by a permanent (not a temporary) representative of the estate after the period has arrived when distribution may be made free of creditors' claims against the fiduciary․  In the case of competent and adult spouses the statute has been liberalized by the proposed amendment so as to permit the court to open a default in electing if the surrogate deems proper even after six months have elapsed.  This relief cannot be granted, however, after twelve months have elapsed since letters issued or if an accounting decree has been entered.  Thus in every case the accounting decree is final” (Note on 1936 Senate Intro 1425, Assembly Intro 473, enacted as L 1936, ch 114 [emphasis added] ).

What emerges from the foregoing is that the legislature, in enacting the 1936 amendment to former Decedent Estate Law § 18(7), intended to overrule any implication that could be drawn from McGarry that legal rules or principles extraneous to the spousal election statute – such as the equitable principle articulated in Murphy that the Second Department apparently applied in McGarry – may be used to extend a spouse's time to make an election (see Paskievitz, 184 Misc. at 322 [observing that, under the 1936 amendment, “as to a competent adult spouse, the statute was strengthened so as to make certain that the periods of time fixed in it were final and absolute and could not be extended by the courts,” for the “express purpose ․ (of) avoid(ing) delay in the completion of the administration of an estate and to prevent a belated assertion of a right of election by a competent adult spouse who had failed to give timely notice”];  Goldstein, 176 Misc. at 367 [observing that the legislative note appended to the bill enacting the 1936 amendment “made clear that the intendment of the legislature was to foreclose a spouse who had failed to make an election within the period specified” by former Decedent Estate Law § 18(7) ] ).

The majority asserts that McGarry – the case to which the legislature was reacting when it enacted substantially the same language now found in subparagraph (d)(3) – is “doctrinally irrelevant” because the doctrine applied in McGarry was not equitable estoppel but some other equitable doctrine.  This is a distinction without a difference, since it is clear from the statutory declaration, both as originally enacted and as codified today, as well as from the legislative history I have adduced, that the spousal election statute's time limits are “exclusive” and not subject to being “suspended” or “affected” by any extrastatutory body of law.  In this regard, the majority is merely playing semantic games when it asserts that the effect of equitable estoppel on the operation of a statute of limitation is not to “toll, suspend, or enlarge statutory periods.”  Whatever word one uses for the effect of equitable estoppel, the end-result is to excuse the untimeliness of an otherwise time-barred claim or act.

The majority, while accusing me of “blindsiding” the parties, itself engages in blindsiding by minting an argument that neither party has raised – namely, that the “exclusivity language” added in response to McGarry “was directed at increasing efficiency for foreseeable cases ” (emphasis added).  However, there is not even a hint in the statutory language or the legislative history that the legislature's intention was to limit the effect of the “exclusivity language” to a completely undefined category of “foreseeable cases.”  All indications are that the language now found in subparagraph (d)(3) was intended to apply to the estate of every decedent.  To the extent the majority says otherwise, its position has no foundation whatsoever, and runs afoul of the rule that “[a] court cannot amend a statute by adding words that are not there” (American Tr. Ins. Co. v. Sartor, 3 NY3d 71, 76 [2004] ).  Specifically, “[w]here a statute describes the particular situations to which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (Matter of Alonzo M. v New York City Dept. of Probation, 72 N.Y.2d 662, 665 [1988] [internal quotation marks omitted];  see also James B. Nutter & Co. v County of Saratoga, 39 NY3d 350, 356 [2023] [“Courts may not create a limitation that the Legislature did not enact”] [internal quotation marks omitted];  Holder v. Jacob, 231 AD3d 78, 86 [1st Dept 2024] [same] ).14  Here – aside from the fact that the potential for the invocation of equitable estoppel against a time-bar defense is imminently foreseeable – if the Legislature had intended to limit the applicability of subparagraph (d)(3)'s exclusivity provision to “foreseeable cases,” it would have so provided (and presumably would have provided more guidance to the bench and the bar than the majority offers with the amorphous concept of “foreseeable cases”).

Critically, two elements of the 1936 amendment – the absolute time limit of one year from the issuance of letters and the language declaring that the statute's time limits for making an election are “exclusive” and not to be “suspended or otherwise affected by any provision of law” – were carried over from Decedent Estate Law § 18(7), without substantial change, into EPTL 5–1.1(e)(2) and (3) when the EPTL was enacted in 1966 (L 1966, ch 952) and then, in 1992 (L 1992, ch 595), into EPTL 5–1.1–A(d)(2) and (3), which govern this matter.  While, as previously discussed, EPTL 5–1.10 -A(d)(1) and (2) were amended in 2010 to, among other things, permit the court, upon a showing of good cause, to relieve a spouse of default in timely making an election after the lapse of two years from the date of the decedent's death (L 2010, ch 545, § 1), the 2010 amendment left unchanged subparagraph (d)(2)'s strict deadline for making an election of one year from the issuance of letters testamentary (see Hornby, 139 AD3d at 1154;  Margaret Valentine Turano, 2016 Supp Practice Commentary, McKinney's Cons Laws of NY, EPTL 5–1.1–A) and made no change at all to subparagraph (d)(3), in which the exclusivity provision is found.15  Thus, the majority, in holding that equitable estoppel may override the time limitation for making an election set forth in EPTL 5–1.1–A(d), is overlooking not only the plain meaning of provisions that have been part of our statutory law for nine decades, but also the clearly expressed legislative intent behind those provisions, as enunciated in the note accompanying the bill by which those provisions were enacted.  I am unaware of any jurisprudential principle that would permit this Court to disregard blatantly the plain meaning of a governing statute and the intent behind the statute revealed by its legislative history.16

Lacking any other support for its position that the statute in question does not mean what it says, the majority comes up with the incredible theory that the aforementioned 2010 amendment – which, as noted, left completely untouched and unchanged the two provisions relevant to this appeal, namely, the strict one-year-from-letters election deadline of subparagraph (d)(2) and the exclusivity language of subparagraph (d)(3) – somehow implicitly but invisibly amended those provisions to allow the assertion of equitable estoppel to override the one-year-from-letters time limit.  The majority cites as support for this theory section 193 of the McKinney's Statutes treatise (McKinney's Cons Laws of NY, Book 1, Statutes § 193), but the majority focuses on the wrong portion of this authority.  True, a change in the language of a statute “is deemed to have intended a material change in the law” (id. at 357), but two pages later, section 193 states, “Where an amendment leaves portions of the original act unchanged, such portions are continued in effect, with the same meaning and effect as they had before the amendment” (id. at 359).  This is exactly what happened in the case of the 2010 amendment to EPTL 5–1.1–A. Again, the provisions of the statute that govern this case – the one-year-from-letters deadline of subparagraph (d)(2) and the exclusivity language of subparagraph (d)(3) – were left entirely unchanged.  Thus, it is no surprise these provisions are not discussed in the legislative history of the 2010 amendment.  The 2010 amendment did not change these provisions, which should therefore be accorded the same meaning and effect they had when originally enacted in 1936.  To be clear, it is not my argument that these provisions were “reinforced” by the 2010 amendment, only that the 2010 amendment, by leaving these provisions unchanged, affords the majority no grounds to read any change into their meaning or effect from the meaning and effect they had before the amendment.

Most of the cases on which the majority relies concern the application of equitable estoppel to claims outside the estate administration context (see e.g. Matter of Watson, 8 AD3d 1093, 1093–1094 [4th Dept 2004] [appeal arose from a proceeding involving a dispute between a closely held corporation and its former employee, officer and director] ).  Because these decisions concern claims governed by the statutes of limitation of CPLR article 2 – which, as noted, has no provision comparable to EPTL 5–1.1–A(d)(3) (time limits for making an election “are exclusive and shall not be suspended or otherwise affected by any provision of law”) – they have no relevance to the question of whether equitable estoppel can override the time limits for making a spousal election.

Nor does the majority's position find substantial support in the three cases concerning spousal election that it cites.  In Matter of Sylvester (107 AD3d 903 [2d Dept 2013] ), the petition for leave to file a late notice of election was filed three years after the issuance of preliminary letters testamentary but about a month before the issuance of final letters testamentary (see id. at 904).  The one-year time limit for making an election is measured from the issuance of final letters, not from the issuance of preliminary letters (see In re Weiss's Will, 64 N.Y.S.2d 331, 332, 333 [Sur Ct, Westchester County 1946] ).  In Matter of Orejas (12 Misc.3d 1172[A], 2006 N.Y. Slip Op 51150[U] [Sur Ct, Bronx County 2006] ), the notice of election was served and filed only four months after the issuance of letters testamentary (2006 N.Y. Slip Op 51150[U], *2).  The issue in Orejas – which was decided before the 2010 amendment providing that the two-year period may be extended upon a showing of good cause – was whether the court had the power to extend the two-year period from the decedent's death, in the absence of a provision expressly granting such authority.

Finally, the only case the majority cites in which equitable estoppel has been invoked to permit a spouse to file a notice of election more than a year after the issuance of letters is Matter of Gray (96 AD3d 1584 [4th Dept 2012] ), a decision that appears never to have been cited by another court in the 14 years since it was issued.  Notably, the Gray decision, which is obviously not binding on this Court, does not address the meaning and effect of the directive of EPTL 5–1.1–A(d)(3) that paragraph (d)'s time limitations on making an election are “exclusive and shall not be suspended or otherwise affected by any provision of law.”  For the reasons I have already discussed, I believe that the result in Gray is not consistent with the plain meaning and legislative history of EPTL 5–1.1–A(d) and, therefore, Gray should not be followed.  In any event, the facts of Gray are easily distinguishable from those of this case, inasmuch as the spouse in Gray, to the estate's knowledge, had filed a premature notice of election, and was thereafter assured by counsel for the estate that “her elective share rights would be honored” (96 AD3d at 1586).

The foregoing establishes that, under the statutory framework of the right of spousal election, the doctrine of equitable estoppel is not available to extend beyond one year from the issuance of letters a surviving spouse's time in which to make such an election.  I think it appropriate also to address briefly the policy considerations that support the legislature's choice to provide that the time limitations set forth in EPTL 5–1.1–A(d) are “exclusive” and “not [to] be suspended or otherwise affected by any provision of law.”

The majority appears to proceed on the assumption that a surviving spouse's claim to the spousal share of an estate is analogous to any cause of action by one party against another, such as a malpractice claim by a patient against a physician or by a client against a lawyer or accountant.  Since equitable estoppel may extend the statute of limitations in such a malpractice case, the majority implicitly reasons, the same doctrine should be available to extend the spouse's time in which to make an election against the estate, upon a proper showing of inequitable conduct by the executor.  This analogy is flawed.  The right of spousal election is not a bilateral claim between a surviving spouse as plaintiff and the estate executor as defendant.  Rather, any number of beneficiaries may hold interests in the finite pool of assets forming the estate.  Most of these beneficiaries may have no involvement in the dealings between the surviving spouse and the executor that are alleged to give rise to an estoppel against the executor.  Nonetheless, making a doctrine such as equitable estoppel available to extend unpredictably the spouse's time in which to make an election potentially prejudices everyone interested in the estate by destroying the predictability that the EPTL is intended to bring to estate administration (see Note on 1936 Senate Intro 1425, Assembly Intro 473, enacted as L 1936, ch 114 [recognizing estate law's “major objective of the prompt ascertainment of the shares of the persons interested in an estate and the speedy distribution thereof”] ).  As one court observed in denying a petition to file a late notice of election:

“In this area, beneficiaries are entitled to certainty that, within a defined period of time, the disposition of assets according to a testator's testamentary scheme ․ shall not be subject to divestment.  Indeed, as in most matters in this court, the concept of finality is of paramount importance.  Were it otherwise, the certitude of the proceedings before the Surrogate would be rendered shallow” (Matter of Wolfer, NYLJ, Nov. 3, 2004 at 31, col 6 [Sur Ct, Suffolk County 2004] ).

III. In Any Event, Ann Does Not Allege a Legally Sufficient Claim of Equitable Estoppel Because She Waited About a Year and Half to Make Her Election After She Ceased to be Influenced by Christine and Weiss

For the reasons just discussed, EPTL 5–1.1–A(d) does not permit Ann to invoke equitable estoppel to extend her time to make a spousal election beyond one year after the issuance of letters testamentary.  However, even if an equitable estoppel claim were cognizable in this context, the undisputed facts of this case establish, as a matter of law, that Ann has no viable equitable estoppel claim.

As the majority notes, the elements of a claim that a party is equitably estopped to invoke the statute of limitations are (1) affirmative wrongdoing or deception, (2) reasonable reliance, (3) causation between the misconduct and the delay, and (4) due diligence in commencing the action once the impediment has ceased (see Zumpano v. Quinn, 6 NY3d 666, 674–675 [2006] ).  Here, even assuming that Ann has raised an issue of fact as to whether Christine or Weiss (the attorney Christine chose for Ann) bears some fault for Ann's failure to file an election before the lapse of one year from the issuance of the letters in March 2023, it is clear from Ann's own allegations that she did not exercise due diligence in filing her spousal election after she escaped the influence of Christine and Weiss.  On the contrary, it is undisputed that the election was not filed until November 2024, about 19 months after Weiss ceased to be Ann's attorney in April 2023, and about 17 months after Ann's revocation, in June 2023, of the power of attorney she had given to Christine.  Moreover, as the events recounted in the fact section of this writing demonstrate, Ann maintained an aggressively hostile attitude toward Christine throughout the period of approximately a year and a half between the rupture in the relationship between the two women and Ann's ultimate filing of her extremely late notice of election.  Any notion that Ann was still under the influence of Christine or Weiss during this period is unsustainable in view of (1) the hostile voicemails Ann left for Christine in September and October of 2023, and (2) the complaint about Weiss that Ann filed with the Attorney Grievance Committee (to which the Committee responded in September 2023), (3) the Family Court proceeding that Ann brought against Christine in November 2023, (4) the hostile letter that the L & G law firm, as Ann's counsel, sent to Christine in May 2024.

As previously noted, to prevail on her claim of equitable estoppel, it is Ann's

“burden ․ to establish that the [notice of election] was [filed] within a reasonable time after the facts giving rise to the estoppel ․ ceased to be operative” (Simcuski, 44 N.Y.2d at 450).  Here, the record establishes that Ann ceased to be influenced by Weiss no later than April 2023 and ceased to be influenced by Christine no later than June 2023, and that she thereafter maintained a consistently hostile attitude toward Christine and Weiss.  Moreover, during the course of the year

a-half period at issue, she consulted with at least three attorneys (Feldman, L & G, and her present counsel) completely independent of Christine.  Any of these attorneys could have advised Ann of the right of spousal election, assuming that Ann had been previously unaware of it.  Under these undisputed circumstances, as a matter of law, any estoppel that conceivably could be found to have existed as of June 2023 certainly had dissipated long before Ann filed her notice of election in November 2024.  Given that Ann had a duty of due diligence once she ceased to be influenced by Christine and Weiss (see id.), she cannot attribute her inaction or ignorance to reliance on Christine and Weiss for an indefinite period of time after such reliance had in fact come to an end.  Even if we were to allow Ann one year from the cessation of her reliance on Christine – a period of the same length as the time limit for making an election measured from the date of the issuance of the letters – she far exceeded that limit here (see id., at 450–451 [“courts have held that in no event will the plaintiff be found to have exercised the required diligence if his action is deferred beyond the date which would be marked by the reapplication of the statutory period, i.e., that the length of the statutory period itself sets an outside limit on what will be regarded as due diligence”];  see also Twersky v. Yeshiva Univ., 993 F Supp 2d 429, 443 [SDNY 2014], aff'd 579 Fed Appx 7 [2d Cir2014], cert denied 575 U.S. 935 [2015] [“Generally, the outer limit for exercising due diligence would be the statute of limitations measured from the date when the facts giving rise to the estoppel have ceased to be operational”] ).

The majority's response to the foregoing is to say that “[t]he obstacle described in the petition was informational, not interpersonal as [the] hostility” between Ann and Christine did not convey any information to Ann about her rights or the estate.  While that may be true, what Ann's hostility to Christine shows is that, certainly after the revocation of the power of attorney in June 2023, she no longer trusted Christine and certainly did not rely on her for guidance.  Reliance, as noted, is an essential element of a claim of equitable estoppel (see Zumpano, 6 NY3d at 674 [a plaintiff invoking equitable estoppel “must demonstrate reasonable reliance on the defendant's misrepresentations”] ).  Accordingly, since the record establishes that Ann ceased to rely on Weiss in April 2023 and on Christine in June 2023, the “facts giving rise to the estoppel ․ ceased to be operational” (Twersky, 993 F Supp 2d at 443) no later than June 2023.  Any estoppel would have dissipated along with the reliance on which it was grounded.  The record shows that Ann was capable of retaining counsel to advise her without Christine's help.  Thus, assuming an estoppel could have arisen in the first place, the basis for that estoppel ceased to be operational no later than June 2023, as a matter of law.  No weighing of evidence is required to reach this conclusion;  the relevant facts are all uncontroverted and are established by the record, as a matter of law.17  If Ann remained unaware of the right of spousal election after she affirmatively rejected Christine's guidance and turned to others for support, Christine (and, through her, the other beneficiaries of the estate) cannot, under any theory, be charged with Ann's continuing ignorance and inaction for a year and a half after the breach.

The majority apparently believes that Christine's fiduciary status for certain purposes – insofar as she was executor of the will, trustee of the RJG Trust and the marital trust, and (until Ann revoked the power of attorney on June 13, 2023) Ann's attorney-in-fact – would serve to extend an estoppel indefinitely beyond the point at which Christine ceased to influence Ann. No authority is cited for this supposition.  In any event, Christine's fiduciary status has no relevance to the majority's estoppel analysis because none of her fiduciary roles gave rise to any obligation to advise Ann of the spousal right of election.  As executor, Christine owes a fiduciary duty to the estate and the beneficiaries collectively, but not to Ann personally, and certainly did not have an obligation to advise Ann of her right to elect against the will that it was Christine's charge to execute.  Similarly, while Christine, as trustee, owes Ann a fiduciary duty in administering the RJG Trust and the marital trust, advising Ann on the right of spousal election is not part of such administration.  As to the now-revoked power of attorney, there is no allegation that Christine's conduct under that instrument in any way undermined Ann's ability to exercise her spousal rights.  Needless to say, Christine, by holding the power of attorney, did not undertake to give Ann legal advice.18

The majority overlooks that the cases on which its equitable estoppel argument relies are distinguishable from the present case in that, in all such cases, the estoppel was based on some matter of fact that was concealed from, or misrepresented to, the party invoking the estoppel (see Simcuski, 44 N.Y.2d at 447 [the defendant physician allegedly “willfully, falsely and fraudulently told plaintiff that her post operative problems, pain and difficulties were transient” and would respond to physiotherapy];  General Stencils, 18 N.Y.2d at 126 [the defendant, who had been the plaintiff's head bookkeeper, allegedly “fraudulently concealed her defalcations”] ).  In this case, however, Ann's right of election was not dependent upon any matter of fact that was misrepresented to her or concealed from her;  indeed, Ann, in her affirmation, does not allege that she relied on any misrepresentation of any fact.  Rather, she complains that her former attorney, Weiss, did not advise her of her right of spousal election – a matter of law, not dependent on any facts unknown to Ann, of which she could have been advised by any attorney after escaping the influence of Christine and Weiss.  Contrary to the majority's assertions, there is no evidence or allegation in the record that Christine or Weiss did anything to “conceal[ ] core information” or to “obstruct[ ] access” to such information so as to be responsible for Ann's inaction for a year and a half after escaping Christine's influence.19

The majority cites no authority in support of its assertion that the duty of due diligence of a party invoking equitable estoppel “begins when the concealed facts are revealed.”  A moment's reflection should suffice to reveal that this proposition cannot be the law because by absolving plaintiffs of the obligation to use due diligence to uncover their claims after any obstruction by defendants ceased, it would result in time limitations being extended indefinitely (cf.  Zumpano, 6 NY3d at 675 [“A wrongdoer is not legally obligated to make a public confession, or to alert people who may have claims against it, to get the benefit of the statute of limitations”] ).  Here, the implication of the majority's position is that, because Weiss allegedly did not advise her of her right of election, Ann could have waited any length of time after he ceased to be her lawyer to exercise that right.  This cannot be the law.

Conclusion

In conclusion, I note that the majority takes issue with my “rhetorical style,” claiming that it is inconsistent with the “measured, record-based analysis” the majority implicitly claims to offer.  Of course, the majority uses sharp rhetoric of its own (accusing me of “blindsiding” the parties by “introduc[ing] a new statutory interpretation ․ [that] depart[s] from the record the litigants have developed” and “disregard[ing]” applicable principles, positing that my analysis depends on “inflammatory” but legally irrelevant information, and the like).  Putting that aside, the majority's sensitivity about the forcefulness of my arguments – a forcefulness motivated by the importance of the legal principles at stake and the confusion the majority's decision will sow in the field of estate administration – serves to distract from the unprecedented nature of the majority's disposition of this appeal.  To recapitulate just three of the most remarkable aspects of the decision, the majority

 declares “unpreserved” an argument based on a statute that was cited and quoted in relevant part by the party who raised the issue that the statute directly governs;

 asserts that, even if the argument is preserved, the statute's plain-language directive that its time limits are “exclusive” and not to be “suspended or otherwise affected” by other bodies of law is somehow limited to “foreseeable cases,” an amorphous category of the majority's own invention that is referenced nowhere in the statute or its legislative history;  and

 turns principles of statutory construction on their head by holding that the meaning of the relevant statutory language, which has not been substantively amended for nine decades, was changed by a relatively recent amendment to the statute that made absolutely no change to the language in question.

For all of the foregoing reasons, I would affirm Surrogate's Court's well-reasoned decision and order granting the motion to dismiss the petition, and respectfully dissent from the majority's reversal of that order.

Order, Surrogate's Court, New York County (Hilary Gingold, S.), entered July 14, 2025, reversed, on the law, without costs, the motion to dismiss denied, the petition reinstated, and the matter remanded to Surrogate's Court for a hearing on the merits.

Opinion by Shulman, J. All concur except Friedman, J. who dissents in a separate Opinion.

Manzanet–Daniels, J.P., Friedman, Kapnick, Shulman, Higgitt, JJ.

FOOTNOTES

1.   We note with concern that our colleague, throughout his dissenting opinion, adopts a rhetorical style that diverges from the measured, record-based analysis this Court must apply.  Such characterizations neither accurately reflect the reasoning we, the majority, employ nor advance a principled discussion of the statutory and equitable questions properly before the Court.

2.   The dissent's assertion that EPTL5–1.1–A (d)(3) bars any doctrine not written into the statute is incorrect.  Matter of Powell (73 Misc.3d 398, 404 [Sur Ct, Erie County, 2021] ) (tolling the one-year period under Executive Order [A. Cuomo] No.202.8 [9 NYCRR 8.202.8] ) applied the Governor's temporary suspension of procedural deadlines under Executive Law § 29–a during the COVID–19 emergency.  While Powell is otherwise irrelevant here, it confirms that EPTL5–1.1–A (d)(3) does not operate as the absolute bar the dissent describes.

3.   Footnote 14 of the dissenting opinion incorrectly assumes that our analysis rests on a fiduciary duty arising from the parties' familial relationship.  It does not.  Rather, the fiduciary obligations at issue derive solely from legal roles respondent simultaneously occupied as executor under the will, as trustee of the revocable trust, and as attorney-in-fact under a broad power of attorney procured while appellant was medically vulnerable.  Picard v. Fish (139 AD3d 1331 [3d Dept 2016] ) holds only that kinship alone does not create a fiduciary duty (see id. at 1333, citing Scheuer v. Scheuer (308 N.Y. 447 [1955] ).  Concededly, Picard did not address the fiduciary obligations of an agent acting under a power of attorney.  Nonetheless, nothing in Picard disturbs the well-established fiduciary duties imposed on executors, trustees, or agents acting under a power of attorney.  Respondent held each of these positions.  Her duties of candor and loyalty to appellant arose from those roles alone.

4.   Although the dissent asserts that it does not rely on collateral references to appellant's son or her alleged independent wealth, the dissent's opinion includes those references.  In all events, such collateral matters do not bear on when appellant first obtained the information necessary to recognize her statutory rights, which is the dispositive inquiry for equitable estoppel.

5.   I note that the scope of the power of attorney cannot be determined from the existing record, since the copy of the instrument in the record is missing at least two pages.

6.   The majority describes the end of Ann's attorney-client relationship with Weiss as follows:  “After [Ann] reached out reasonably requesting documentation to which she was entitled, Weiss, without any explanation, unilaterally terminated representation ․ in April 2023” (emphases added).  Given that the termination of the relationship was precipitated by Ann's demand that Weiss return the originals of her estate planning documents, which she intended to revoke, the majority's description is at best misleading.  Indeed, it is a fair inference from Ann's demand for the return of the original documents, and her stated intention to revoke them, that she wished to discharge Weiss.  Nothing in the record suggests otherwise.

7.   As more fully discussed later in this writing, the time limitation of twelve months from the issuance of letters, now set forth in EPTL 5–1.1–A(d)(2), was first enacted as an amendment to former Decedent Estate Law § 18(7) by L 1936, ch 114 (see Matter of Paskievitz, 184 Misc. 320, 321–322 [Sur Ct, N.Y. County 1944];  Matter of Goldstein, 176 Misc. 366, 367 [Sur Ct, N.Y. County 1941] ).

8.   I will address the majority's confusing argument based on the 2010 amendment in the next section of this writing.

9.   The majority states that Hornby “did not hold that equitable estoppel is categorically unavailable in this context.”  Insofar as equitable estoppel was not at issue in Hornby, and thus was not discussed or even mentioned in the Third Department's decision, I am constrained to agree with the majority on this limited point.  I cite Hornby only to illustrate that the statute, as amended in 2010, permits a good-cause extension of the time to make an election beyond two years from the date of death, but does not authorize any such extension beyond one year from the issuance of the letters.

10.   Matter of Powell (73 Misc.3d 398 [Sur Ct, Erie County 2021] ), in which the majority claims to find support for its theory that subparagraph (d)(3) does not bar application of equitable estoppel, has absolutely no relevance to the present case.  Far from approving the general application of extra-statutory bodies of law to extend the time limitations prescribed by EPTL 5–1.1–A(d), Powell merely recognized that Governor Cuomo, pursuant to his extraordinary power to address a “state disaster emergency” under Executive Law § 29–a, had suspended, by executive order, all statutory procedural time limitations, including those of the EPTL, in response to the COVID–19 pandemic (see 73 Misc.3d at 401–404).  No such executive order was in effect at any time relevant to this proceeding.  Contrary to the majority's attempt to read Powell as an opening to the overriding of the time limits of EPTL 5–1.1–A(d) by “any doctrine not written into the statute,” the decision merely recognizes that the those time limits are subject, pursuant to the specific directive of the legislature in Executive Law § 29–a, to suspension by executive order of the governor under the extraordinary circumstances of a state disaster emergency.  Powell provides no support for applying equitable estoppel to extend the statutory time limits for making a spousal election.

11.   It also seems to me that the majority's illogical attempt to deem the issue of subparagraph (d)(3) unpreserved is a tacit admission that, if that provision applies, the majority's house of cards collapses.

12.   The cases cited by the majority on this point are not to the contrary.  In the statement cited by the majority from Henry v. New Jersey Tr. Corp. (39 NY3d 361 [2023] ), the Court of Appeals was discussing the requirements for preservation of a question of law “for this Court's review” (id. at 367 [emphasis added] ) – i.e., for review by the Court of Appeals itself – not the requirements for review of a pure question of law by the Appellate Division.  In Misicki (12 NY3d at 519), the issue raised by the dissent at its own instance, which the Court of Appeals majority declined to consider, was whether a certain tool fell within the scope of a certain section of the Industrial Code, which at least potentially involved a factual inquiry into the nature of the tool.  Wilson v Galicia Contr.   & Restoration Corp. (10 NY3d 827 [2008] ) held that a contention that a default judgment was a nullity for failure to comply with CPLR 3215(f) (specifying the documents to be filed in support of an application for a default judgment) could not be raised for the first time on appeal to the Court of Appeals because “had defendant earlier raised CPLR 3215(f), plaintiff might well have filed the documents referenced in that section” (id. at 829–830).  In Bingham v. New York City Tr. Auth. (99 N.Y.2d 355, 359 [2003] ), as in Henry, the Court of Appeals was discussing the preservation requirements for raising an issue of law before the Court of Appeals itself, and specifically distinguished the more liberal practice in the Appellate Division.  Finally, in Crane, A.G. v 206 W. 41st St. Hotel Assoc., L.P. (87 AD3d 174 [1st Dept 2011] ), the issue the majority criticized the dissent for raising at its own instance involved “ostensible issues of fact” (id. at 179).

13.   When McGarry was decided, the time limitation for an exercise of the right of spousal election was “six months from the date of the issuance of letters testamentary,” with the proviso that “the time to make such election may be enlarged before its expiration by an order of the surrogate's court where such will was probated, for a further period not exceeding six months upon any one application, upon a petition showing reasonable cause” (former Decedent Estate Law § 18(7), as enacted by L 1929, ch 229).

14.   See also People v. Hardy, 35 NY3d 466, 474 [2020], quoting McKinney's Cons Laws of NY, Book I, Statutes, § 363 [“A court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact”] [internal quotation marks and parentheses omitted];  Myers v. Schneiderman, 140 AD3d 51, 58 [1st Dept 2016], aff'd 30 NY3d 1 [2017], quoting McKinney's Cons Laws of NY, Book I, Statutes, § 363 [“judges should not attempt to fill up a casus omissus and interpolate into a statute what in their opinion should have been put there by its framers, however just and desirable it may be to supply the omitted provision”] [internal quotation marks omitted] ).

15.   Indeed, subparagraph (d)(3) was not even reproduced as part of the bill enacting the 2010 amendment (see 2010 McKinney's Sess Laws of N.Y. at 1420 [L 2010, ch 545, § 1, amdg EPTL 5–1.1–A(d)(1) and (2) ] ).

16.   It should also be noted that the majority crafts no limiting principle to the applicability of equitable estoppel to affect the statutory time limits for making a spousal election.  Thus, if it is possible for equitable estoppel to override the one-year-from-letters time limit, there is no logical reason not to allow equitable estoppel, in a proper case, to override the provision that relief from a default in exercising the right of election cannot be granted to a spouse after the entry of a “decree settling the account of the personal representative has been made” (EPTL 5–1.1–A[d][2] ).

17.   Contrary to the majority's implication, my analysis of Ann's equitable estoppel argument does not depend on “collateral, inflammatory facts about [her] son” or “[her] alleged independent wealth.”

18.   Contrary to the majority's puzzling assertion, I do not “assume[ ] that [the majority's] analysis rests on a fiduciary duty arising from the parties' familial relationship.”  However, I do note that, as the majority concedes, Christine did not owe Ann a fiduciary duty by virtue of being her daughter (see Picard v. Fish, 139 AD3d 1331, 1333 [3d Dept 2016], citing Scheuer v. Scheuer, 308 N.Y. 447, 452 [1955] ).

19.   Insofar as the size of the estate is relevant to the consideration of whether to exercise the right of spousal of election, as previously noted, nowhere in the petition or in Ann's affirmation is it alleged that she relied upon, or even knew about, the $2 million estimate of the estate's value in the probate application.  Since Ann states in her affirmation that, when the decedent died, she had a “general knowledge of the monetary value of his/our estate's assets,” and that she was “aware that we owned approximately 14 buildings in the East Village with dozens of commercial and residential tenants that generated millions in rental income,” she must always have realized that the estate was worth far more than $2 million, notwithstanding her complaint that she “was not provided with specific valuations of the Estate's assets” until after she retained her current counsel.