DECISION & ORDER
In a proceeding pursuant to SCPA 1421 to determine the effect of the petitioners election to take her elective share of the decedents estate and to direct the New York City Employees Retirement System to pay the petitioner her elective share of the decedents death benefit, the New York City Employees Retirement System appeals from an order and decree (one paper) of the Surrogates Court, Kings County (Margarita Lopez Torres, S.), dated December 13, 2017. The order and decree, insofar as appealed from, (1) granted that branch of the petitioners motion which was for summary judgment on the petition, (2), in effect, denied that branch of the petitioners motion which, alternatively, was to direct Ghulam Baig to pay the petitioner her elective share of the decedents estate, and (3) denied that branch of the cross motion of the New York City Employees Retirement System which was for summary judgment dismissing the petition.
ORDERED that the appeal from so much of the order and decree as, in effect, denied that branch of the petitioners motion which was to direct Ghulam Baig to pay the petitioners elective share of the decedents estate is dismissed, as the appellant is not aggrieved by that portion of the order and decree (see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further,
ORDERED that the order and decree is reversed insofar as reviewed, on the law, with costs, that branch of the petitioners motion which was for summary judgment on the petition is denied, and that branch of the cross motion of the New York City Employees Retirement System which was for summary judgment dismissing the petition is granted.
The petitioner was married to the decedent, Naveed Baig, with whom she has four minor children. At the time of his death on July 9, 2015, the decedent was survived by the petitioner, his children, and his father, Ghulam Baig (hereinafter Ghulam). Prior to his death, the decedent named Ghulam as the sole beneficiary of his New York City Employees Retirement System (hereinafter NYCERS) death benefit.
The petitioner notified NYCERS of the decedents death in August 2015 and inquired if she or any of her children were named beneficiaries of the decedents death benefit. In December 2015, NYCERS sent a letter to the petitioner explaining the process by which she could elect to take a share of the decedents death benefit. The letter further stated that NYCERS would distribute the death benefit in its entirety to the named beneficiary unless the petitioner served upon it within 30 days a court order preventing it from making such distribution.
In a letter dated February 1, 2016, NYCERS informed the petitioner that it would no longer retain the decedents death benefit and would distribute it to the designated beneficiary. On February 11, 2016, the petitioner requested an extension of time for NYCERS to retain the decedents death benefit. NYCERS granted the petitioners request and extended the petitioners deadline to serve upon it an order preventing it from distributing the entire death benefit to the named beneficiary until April 25, 2016. The petitioner did not serve NYCERS with such an order prior to the expiration of the deadline. On May 20, 2016, NYCERS paid the entirety of the decedents death benefit to Ghulam. On July 2, 2016, the petitioner filed her written notice of election with the Surrogates Court.
The petitioner thereafter commenced the instant proceeding to determine the effect of her election to take her elective share of the decedents estate and to direct NYCERS to pay the petitioner her elective share of the decedents death benefit. The petitioner moved for summary judgment on the petition or, alternatively, to direct Ghulam to pay the petitioner her elective share pursuant to EPTL 5–1.1–A(c)(2). NYCERS cross-moved for summary judgment dismissing the petition or, alternatively, for summary judgment on its cross claims for contribution and unjust enrichment against Ghulam.
In an order and decree dated December 13, 2017, the Surrogates Court granted that branch of the petitioners motion which was for summary judgment against NYCERS and directed NYCERS to pay the petitioner her elective share of the decedents death benefit. The court denied NYCERSs cross motion for summary judgment. NYCERS appeals.
“EPTL 5–1.1–A grants a surviving spouse a personal right of election to take a share of a decedents estate” (Matter of Atiram, 83 A.D.3d 1055, 1055, 921 N.Y.S.2d 570; see EPTL 5–1.1–A[a]). Pursuant to EPTL 5–1.1–A(b)(1)(G), money payable under a death benefit is treated as a testamentary substitute and is included in the net estate subject to a surviving spouses elective right. “Except as otherwise expressly provided in the will or other instrument making a testamentary provision, ratable contribution to the share to which the surviving spouse is entitled shall be made by the beneficiaries and distributees (including the recipients of any such testamentary provision), other than the surviving spouse, under the decedents will, by intestacy and other instruments making testamentary provisions” (EPTL 5–1.1–A[c][2]).
A surviving spouses election to take a share of the decedents estate “must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedents death” (EPTL 5–1.1–A[d][1]). A surviving spouse must file written notice of such election in the Surrogates Court that issued the letters testamentary or of administration (see EPTL 5–1.1–A[d][1]).
The provisions of EPTL 5–1.1–A(b) “shall not prevent a corporation or other person from paying or transferring any funds or property to a person otherwise entitled thereto, unless there has been served personally upon such corporation or other person a certified copy of an order enjoining such payment or transfer made by the surrogates court having jurisdiction of the decedents estate or by another court of competent jurisdiction” (EPTL 5–1.1–A[b][4] [emphasis added]). EPTL 5–1.1–A(b)(4) further provides that a “corporation or other person paying or transferring any funds or property described in clause (G) of subparagraph one of this paragraph,” which includes death benefits, “to a person otherwise entitled thereto, shall be held harmless and free from any liability for making such payment or transfer, in any action or proceeding which involves such funds or property.”
Here, it is undisputed that the petitioner did not serve NYCERS with an order enjoining it from paying the entirety of the decedents death benefit to the named beneficiary, Ghulam. Accordingly, pursuant to EPTL 5–1.1–A(b)(4), NYCERS “shall be held harmless and free from any liability for making such payment” in the instant proceeding.
The petitioners argument that NYCERS should be equitably estopped from relying on EPTL 5–1.1–A(b)(4), raised for the first time on appeal, is not properly before this Court (see J.P. Morgan Chase Bank, N.A. v. Cortes, 96 A.D.3d 803, 804, 947 N.Y.S.2d 528; NYU Hosp. for Joint Diseases v. Country Wide Ins. Co., 84 A.D.3d 1043, 1044, 925 N.Y.S.2d 89).
DILLON, J.P., AUSTIN, BARROS and WOOTEN, JJ., concur.