ALAN HABERMAN v. << (2026)

The following papers were considered in preparation of this decision:

Notice of Motion 1

Affirmation in Support with Exhibits 2

Memorandum of Law 3

Affirmation in Opposition with Exhibits 4

Reply Affidavit 5

In this probate proceeding, the petitioner, Michael Haberman (Michael), has moved for an order striking the Notice of Appearance filed on behalf of the respondent, Joann Verni Haberman (Joann), and Joann's Notice of Right of Election due to lack of standing and to recover costs and legal fees. Joann opposes the motion.

The decedent, Alan Haberman (the decedent), died on October 15, 2025, leaving a will dated April 5, 2019 (the Will). The decedent was survived by his three sons from a prior marriage, Michael, Richard Haberman (Richard), Howard Haberman (Howard), and his spouse, Joann.

The Will has been offered for probate by Michael. Michael also filed for preliminary letters testamentary, which issued to him on January 2, 2026. The Will pours over into the Alan M. Haberman Revocable Trust dated April 5, 2019 (the Trust). The Trust makes no provision for Joann and leaves the bulk of the decedent's estate to his children.

The decedent and Joann entered into a Prenuptial Agreement dated December 22, 2020 (the Prenuptial Agreement). The Prenuptial Agreement provides as follows:

Each party hereby releases, waives and relinquishes any right or claim of any nature whatsoever in the property of the other or otherwise, now or hereafter acquired, and, without limitation expressly forever waives any right or claim that he or she may have or hereafter acquire, whether as the spouse of the other or otherwise, under the present or future laws of any jurisdiction: (a) to share in the estate and in any testamentary substitutes of the other party upon the death of the other party; and (b) to act as executor or administrator of the estate of the other or as trustee, personal representative or in any fiduciary capacity with respect to the estate of the other. All rights that either party may acquire in the other's estate by virtue of the marriage, including but not limited to rights of set-off in § 5-3.1. all distributive shares in § 4-1.1 and all rights of election in § 5-1.1-A of the Estates, Powers and Trusts Law of New York, as such laws may now exist or hereafter be changed, and any similar or other provision of law in this or any other jurisdiction are hereby waived by each party.

The decedent and Joann married on December 22, 2020, the same date the Prenuptial Agreement was executed.

Citation issued to Joann in the probate proceeding. She has indicated that she intends to conduct SCPA 1404 examinations and file objections. Michael contends that she lacks standing based upon the Prenuptial Agreement. It is Michael's contention that Joann waived her right to any portion of the decedent's estate. In opposition to the motion, Joann does not dispute that the Prenuptial Agreement, if valid and enforceable, would preclude her from filing objections. She argues, however, that the Prenuptial Agreement should be set aside.

According to Joann's counsel, the Prenuptial Agreement was signed on the same day of the wedding and she was handed the Prenuptial Agreement as she and the decedent were preparing to leave the house to travel to their wedding ceremony. Joann's counsel claims that Joann never met or spoke to Alessandra Messineo Long, Esq., the attorney identified in the Prenuptial Agreement as purportedly representing both the decedent and Joann. According to Joann's counsel, Joann had no consultation with Ms. Long before signing the Prenuptial Agreement and had no prior relationship with her.

The Prenuptial Agreement provides that "[e]ach party has been separately represented by an attorney of his or her own choice." It goes on to state that the decedent and Joann were each represented by Ms. Long and that they executed a "dual representation agreement." According to Joann's counsel, when Joann signed the Prenuptial Agreement, only the decedent was present, Ms. Long was not present and the notarization was performed later by the decedent's brother. Counsel also claims that Joann found the Prenuptial Agreement confusing, and she relied on the decedent, who was an attorney, and trusted him. Joann claims she did not have the opportunity to consult with independent legal counsel. She felt pressure to sign the Prenuptial Agreement because she had already invested $400,000.00 into their shared home. Joann's counsel also argues that Joann had no knowledge of the scope of the decedent's finances before she signed the document.

In reply, Michael argues that the Prenuptial Agreement is presumed valid and enforceable as a matter of law. Moreover, he argues that Joann's opposition is not supported by an affidavit of a person with personal knowledge and no documentary proof has been presented. Michael argues that Joann's "Notice of Appearance and Notice of Right of Election must be struck for lack of standing." Although Michael does not denominate his motion as a motion to dismiss for lack of standing pursuant to CPLR 3211 (a)(3), the court will treat it as such. Accordingly, under CPLR 3211 (a)(3), a movant must establish prima facie, an opponent's lack of standing. Specifically, the moving party must make a prima facie showing of its entitlement to judgment as a matter of law submitting sufficient evidence to establish the absence of any material triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1985]). If such a showing is made, the opposing party must raise a triable issue of fact as to standing (Id.).

"It is axiomatic that a duly executed prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside "(Anonymous v. Anonymous, 123 AD3d 581, 582 [1st Dept 2014]). Nevertheless, "an agreement between prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress or other inequitable conduct" such as overreaching (Id.) Overreaching is described as "concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception (Gottlieb v. Gottlieb, 138 AD3d 30, 37 [1st Dept 2015]).

As noted above, Joann intends to seek SCPA 1404 discovery; however, if the Prenuptial Agreement is valid, she has no pecuniary interest in the estate and no standing to participate in SCPA 1404 discovery or to file objections.

"It is a well-settled practice in the Surrogate's Court to determine the status of a potential objectant before trying the issue of the validity of the instrument for probate (Matter of Miller, NYLJ, July 21, 2022 at 37, col 3 [Sur Ct, Westchester County]). Indeed, "[a]n individual who waives an interest in a future estate is in essence a stranger to the estate and may not file objections to the probate of the will . . ." (Id.).

A waiver of a spouse's right to inherit in the estate of a deceased spouse must be clearly expressed and unequivocal (see Matter of Laney, 274 App Div 250 [4th Dept 1948]; Matter of Dito, 218 AD2d 737 [2d Dept 1995]). In Matter of Stern, 2025 NY Slip Op 32506 [U] [Sur Ct, New York County 2025], the court held that the surviving spouse's opposition was insufficient as a matter of law to create an issue of fact as to duress or overreaching. The surviving spouse there asserted that he was told on the eve of the wedding that the signing of the prenuptial agreement was a prerequisite to the wedding going forward. The court held that the exercise or the threatened exercise of a legal right does not constitute duress (Id., see also Barocas v. Barocas, 94 AD3d 551 [1st Dept 2012]; Weinstein v. Weinstein, 36 AD3d 797, 799 [2d Dept 2007]). The decedent in Stern told her spouse that the agreement was merely a safety value and that she would take care of him financially. The court held that the spouse's reliance on such assurances was insufficient as the agreement stated that the agreement contained the entire understanding of the parties. The surviving spouse also claimed that the decedent's counsel assigned a co-worker to represent him in connection with the agreement and the decedent paid her fee. The court similarly found that this was insufficient since "[t]he fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel's fees, is insufficient to demonstrate duress or overreaching" (Barocas v. Barocas, 94 AD3d at 551).

Moreover, a disparity in assets is insufficient to raise a triable issue where the "substantial financial disparity between the parties was fully disclosed at the time the agreement was executed" (Darrin v. Darrin, 40 AD3d 1391, 1392-1393 [3d Dept 2007]).

Here, Joann claims that she relied on certain financial promises the decedent allegedly made to her after the execution of the Prenuptial Agreement; however, such promises have no bearing on the validity of the Prenuptial Agreement.

Although, the courts have held that "[t]he allegation of plaintiff that her attorney was chosen and paid for by defendant does not itself raise a triable issue of fact sufficient to sustain her claim of duress" (Colello v. Colello, 9 AD3d 855, 858 [4th Dept 2004]), here, Joann claims that she and the decedent were indeed represented by the same counsel. Joann asserts that she had no consultation with the attorney before signing the document and had no prior relationship with her. In Leighton v Leighton, 46 AD3d 264 [3d Dept 2007], the wife argued that the prenuptial agreement should be set aside because she was not given the opportunity to consult counsel before signing the agreement and that it was presented to her just hours before the wedding. The court held that neither party was entitled to summary judgment as there were genuine issues of fact concerning the fairness of the circumstances.

Similarly, in Carter v Carter, 159 AD2d 1315 [3d Dept 2018], the wife stated that she was presented with a revised agreement on the very day of the wedding while standing outside the County Clerk's office. The wife argued that she didn't have time to read the document or take it to a lawyer. The court found that "[t]hese facts if credited, give rise to the inference of overreaching" (Id.).

Here, Ms. Long, who was based out of Connecticut, was not present when the Prenuptial Agreement was executed. The lack of independent counsel, together with the presentment of the Prenuptial Agreement on the day of the wedding, requires a hearing on the issue of whether the Prenuptial Agreement should be set aside on the grounds of overreaching.

A conference shall be held on August 6, 2026 at 10:30 a.m. at the Nassau County Surrogate's Court, located at 262 Old Country Road, Mineola, New York, 11501 to schedule a hearing on the issue of the validity of the Prenuptial Agreement.

The motion is DENIED.

Dated: July 10, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

This constitutes the decision and order of the court.

David P. Sullivan, J.