Opinion
51457/2017
09-20-2017
Milton Macias and GLADYS RIVERA, as Administrators of the Estate of JACQUELINE ANDRADE for the benefit of her sons MILLER AND ERICKSON, Plaintiff, v. Andres Clemente Sabillon, Defendant.
Anthony T. Dipietro, Esq. Attorney for Plaintiffs 233 Broadway, Suite 2700 New York, New York 10279 John S. Parnese, Esq. Attorney for Defendant 4308 Richmond Avenue Staten Island, New York 10312
Anthony T. Dipietro, Esq. Attorney for Plaintiffs 233 Broadway, Suite 2700 New York, New York 10279 John S. Parnese, Esq. Attorney for Defendant 4308 Richmond Avenue Staten Island, New York 10312 Jeffrey S. Sunshine, J.
The following papers numbered 1 to 4 read herein:
Papers Numbered
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1, 2 Opposing Affidavits (Affirmations) 3 Reply Affidavits (Affirmations) Other Defendant's Memorandum of Law 4
Introduction and Background
On March 27, 2017 plaintiffs, the Administrators of the Estate of Jacqueline Andrade for the benefit of her sons Miller and Erickson, filed a summons and verified complaint seeking an annulment of the marriage between Jacqueline Andrade, deceased, and Andres Clemente Sabillon based on the allegation that Mr. Sabillon induced Mrs. Andrade (the decedent) to "enter into a fraudulent and voidable marriage" for the sole purpose of "enabling him to avoid deportation from the United States of America." The verified complaint asserts the following causes of action: DRL 140(a) which allows for an annulment if one of the parties to a marriage was presently married to someone else; DRL 140(e) and DRL (7) to void the marriage based upon force, duress or fraud; DRL 170(1) and (2); and DRL170(7). The movants posit that Mr. Sabillon is an "interloper" and they argue that the "fraudulent marriage was void ab inito and therefore an Order of annulment should be granted. On April 17, 2017 the defendant, through counsel, filed a notice of motion seeking the following relief: A) pursuant to CPLR Rule 3211(a)(1), dismissing Plaintiffs' Verified Complaint and any and all claims asserted against Defendant, Andres Clemente, on the grounds that this Defendant has defense founded upon documentary evidence; B) Pursuant to CPLR Rule 3211(a)(3), dismissing the Plaintiffs' Verified Complaint and any and all claims asserted against Defendant, Andres Clemente, on the grounds that the party asserting the cause of action has not legal capacity to sue; C) Pursuant to CPLR Rule 3211(a)(5), dismissing the Plaintiffs' Verified Complaint and any and all claims asserted against Defendant, Andres Clemente, on the grounds that the applicable statute of limitations for each and every of the Plaintiffs' claims has expired; D) Pursuant to CPLR Rule 3211(a)(7), dismissing the Plaintiffs' Verified Complaint and any and all claims asserted against Defendant, Andres Clemente, on the grounds that the Plaintiffs' Verified Complaint fails to state a cause of action against Defendant; E) Pursuant to CPLR Rule 3211(a)(8), dismissing the Plaintiffs' Verified Complaint and any and all claims asserted against Defendant, Andres Clemente, on the grounds that the Court does not have jurisdiction over the Defendant; F) Pursuant to New York Codes, Rules and Regulations Subsections 22 NYCRR Section 130-1.1 awarding the Defendant, Andres Clemente, reimbursement for actual expenses reasonably incurred and reasonable attorney's fees in addition to financial sanctions due to Plaintiffs' frivolous conduct in commencing this action against the Defendant, Andres Clemente; G) Directing the entry of a judgment in favor of Defendant, Andres Clemente; H) Together with such other and further relief as to this Court may deem just and proper. Plaintiff's counsel filed an opposition dated May 26, 2017. Defendant's counsel filed a reply affirmation dated June 5, 2017. Defendant filed a memorandum of law The Court heard oral argument on June 13, 2017.
On the record on June 13, 2017 defendant's counsel withdrew his application for the relief requested in (f).
The document is labeled an "affirmation in opposition"; however, CPLR 2106 requires the affirmation of an attorney to be subscribed and affirmed by the attorney to be true under the penalties of perjury and the document submitted by plaintiffs' counsel is not subscribed and affirmed by plaintiffs' counsel. Plaintiffs' counsel's opposition document is also devoid of the requisite NYCRR 130.1-1 attorney certification.
The defendant herein and the decedent, Jacqueline Andrade, were married on December 23, 1996 in Kings County, New York. On June 28, 2004, the decedent died. No Court has issued a decree of divorce or annulment dissolving the marriage between the defendant herein and the decedent. On March 7, 2006 the movants were appointed co-Administrators of the Estate of Jacqueline Adrade, the decedent and on March 27, 2017, the movants commenced this action.
The following facts are not disputed: the decedent gave birth to her eldest child, Erickson Diaz, on June 3, 1995. The Court notes that the identity of the biological father of Erickson Diaz was not revealed to the Court in this application. The decedent was not living with Erickson's biological father when he was born because while pregnant with Erickson she met and moved in with another man named Mr. Milton Macias, who is one of the plaintiffs in this action. When Erickson was born Mr. Macias and the decedent asked the defendant herein — Mr. Sabillon — to be Erickson's "godfather". Plaintiffs contend that, at that time, Mr. Sabillon was illegally residing in the United States. It is undisputed that on December 23, 1996 Mr. Celemente offered to pay — and did pay — the decedent $2,500. The plaintiffs contend that the payment of $2,500 from the defendant to the decedent was to induce her to enter into a fraudulent marriage with him so he could obtain the status of a "Permanent Resident" of the United States of America.
At no time did the decedent and the defendant — Mr. Sabillon — reside together as husband and wife, rather, the decedent and Mr. Macias continued at live together as a family with Erickson. Three (3) months after her marriage to Mr. Sabillon the decedent became pregnant with Mr. Macias' child and on December 17, 1997 she gave birth to Miller Macias her biological child with Mr. Macias. The decedent, Mr. Macias and the two (2) children continued to live together. The decedent and Mr. Macias asked the defendant to be the "godfather" of the child Miller Macias and the defendant agreed to do so. It is undisputed that Mr. Celemente is the "godfather" of the decedent's two (2) children on whose behalf the plaintiffs are litigating in this action.
Plaintiffs assert the following facts, which are not disputed by the defendant, that several years later the relationship between the decedent and Mr. Macias ended and the decedent - along with the two children - began living with a third man, Mr. Muniz. Thereafter, the decedent became pregnant with Mr. Muniz's child; however, on June 28, 2004, while undergoing surgery and pregnant with Mr. Muniz's child the decedent died as a result of complications from negligent medical care. Thereafter, the decedent's two living children — Erickson, who was 9 years old, and Miller, who was 6 years old — returned to live with Mr. Macias. In April 2006 an action for medical malpractice and wrongful death was commenced on behalf of the children and in August 2016 the wrongful death case was purportedly settled for $3,500,000.
In his notice of motion, defendant's counsel argues that the plaintiffs lack standing to maintain the instant action; that the statute of limitations for fraud has expired; and that plaintiff's action should be dismissed for failure to state a cause of action. Furthermore, defendant's counsel asserts that if the plaintiffs believe that defendant abandoned the decedent during her lifetime causing him to forfeit, pursuant to EPTL 5-1.2(5), any inheritance rights he may have otherwise enjoyed or that he executed a valid renunciation of his inheritance rights that those issues would be more properly litigated in a Surrogates' Court proceeding.
Movants argue that the defendant and the decedent never lived together and only had a platonic relationship. They further contend that the defendant signed an affidavit on July 14, 2004 "disclaiming any interest in the proposed lawsuit" but that in late 2016 when the lawsuit was settled the defendant "changed his mind" and wanted to collect his testamentary share of the $3,500,000 settlement. The Court notes that the question of the validity and/or enforceability of this document is not before the Court or legally relevant to the relief requested before this Court. The Surrogates Court would be the proper venue for examining the validity and/or any impact of that document.
Plaintiff's counsel argues that the defendant never supported the decedent "in any way" and that their marriage was "solely entered into to enable Mr. Sabillon to obtain his permanent-resident status" and therefore the marriage was "simply a paper-marriage" and void ab inito "as it doesn't contain any of the elements required for valid marriage in the State of New York." Plaintiff's counsel repeatedly asserts that the marriage between the decedent and defendant was a "fake" marriage while simultaneously conceding that the decedent and the defendant married on December 23, 1996 and continued to be legally married on June 28, 2004 when the decedent died.
In his opposition papers, plaintiff's counsel argues that "any purported marriage between [defendant] and [decedent] was 'abandoned' by both [defendant] and [decedent] before the ink dried on the marriage license..." because, he argues, the defendant and decedent did not live together and the decedent lived with others after she married the defendant in 1996 and before her death in 2004. In further support of the movants' position the plaintiff's counsel asserts that the defendant signed a "waiver of interest" in the decedent's estate on July 14, 2004 shortly after the decedent died which, he asserts, "shows [defendant's] acknowledgment that the entire marriage-thing was a sham...". He further asserts that the defendant never had a parental relationship with the decedent's two (2) children and never supported the decedent "financially or otherwise." Additionally, movants' counsel raises allegations about defendant's past personal relationships with individuals not a party to this action which, he asserts, require that the Court "do what is right and bring [defendant] to justice."
In his reply affirmation, which was submitted prior to the withdrawal on the record at oral argument, defendant's counsel argues that the Court should not consider the plaintiff's opposition papers because the papers fail to satisfy the requirements of an affirmation and provide facts about the decedent's personal life which, defendant's counsel argues, could not have been within the personal knowledge of the affirmant who states that he learned of the parties after the death of the decedent. Defendant's counsel further contends that plaintiffs' "recalcitrance in continuing to litigate this matter and assert their claims, instead of withdrawing same, only serves to solidify the grounds upon which this Court should issue sanctions against the Plaintiffs for the filing and maintaining a completely frivolous action [emphasis in original]."
Cause of Action: Annulment Pursuant to DRL 140(a)
DRL 140(a) allows for an annulment in cases of bigamy. Plaintiff's verified complaint does not allege that either defendant or decedent were married to anyone else at the time the defendant and decedent were married on December 23, 1996 or at any other time before the decedent died nor were facts to that effect raised in plaintiffs' opposition papers or at oral argument. Plaintiff failed to plead a cause of action under DRL 140(a) upon which relief can be granted and, as such, pursuant to CPLR 3211(a)(7) the first cause of action must be dismissed.
Cause of Action: Annulment Based Upon Fraud Pursuant to DRL 140(e)
Plaintiff's second cause of action seeks to annul the marriage claiming the decedent consent to marry the defendant was obtained by fraud. In New York, a marriage can be voided upon evidence of fraud where a party states a cause of action for common law fraud (see NY DOM. REL. LAW § 7(4) ; see also Di Lorenzo v. Di Lorenzo, 63 LRA 92, 34 NYCivProc R 105 [1903]). The essential elements of a cause of action for common-law fraud are representation of a material existing fact (or concealment of such fact while under a duty to reveal it), falsity, scienter, deception/inducement, justifiable reliance, and injury or damages (see New York Univ. v. Continental Ins. Co., 87 NY2d 308 (1995). In order for the plaintiffs to succeed on their claim that the marriage can be voided for fraud, they must allege the defendant made premarital representations to the decedent upon which she relied and which were material to the degree that, had such representations not been made, the decedent would not have consented to the marriage (see Kober v. Kober, 16 NY2d 191, 195, 211 NE2d 817 [1965] (any fraud is adequate which is material, to that degree that, had it not been practiced, the party deceived would not have consented to the marriage); see also Brazil v. Brazil, 235 AD2d 611, 613, 651 NYS2d 721 [3 Dept.,1997] (the misrepresentation alleged must be of such a nature that an ordinarily prudent person would have been deceived).
Here, the plaintiffs argue that defendant's sole purpose in marrying the decedent was to acquire immigration status and, purportedly in support of this theory, the plaintiffs argue that defendant induced the decedent to marry him for the payment of $2,500; however, the plaintiffs also assert that defendant paid the decedent the sum of $2,500 and that the decedent received and accepted the sum of $2,500 to marry the defendant. Interpreted most favorably to the plaintiffs, the facts alleged in the complaint and in the papers do not provide any basis for concluding that the defendant defrauded the decedent. First, there is no allegation that the defenant made any misrepresentations to the decedent. There is no allegation that he told the decedent anything that was untrue. While the plaintiffs claim "fraud" they made no specific factual allegations — in the complaint or in the responding papers — that the defendant engaged in any fraudulent conduct toward the decedent. In contract, the plaintiffs, by admission, essentially concede that no fraud occurred: the undisputed facts establish that the decedent and the defendant agreed to enter into the marriage for the payment of $2,500 without any further representations by either the decedent or the defendant. As such, based upon the facts as presented by the plaintiffs: the decedent knew that she was entering into marriage with the defendant so he could obtain residency status solely for receipt of a single $2,500 payment. As such, the plaintiffs have not alleged the necessary elements for fraud and it is well-established that conclusory allegations of fraud are insufficient to satisfy the pleading requirement of CPLR 3016(b) (see High Tides, LLC v DeMichele, 88 AD3d 954, 931 NYS2d 377 [2 Dept.,2011]).
The Court does not need to reach the question of whether the payment of a lump sum of money or the exchange of an engagement ring upon an agreement to marry are distinct gifts in contemplation of marriage.
The Court need not — and does not — reach the question of whether the agreement between the decedent and the defendant had immigration implications or was a violation of any immigration provisions: the fraud provision pursuant to DRL 7 is designed to safe-guard a party to a marriage from a fraud committed by the other party to a marriage and does not contemplate general fraudulent action by a party to a marriage against a non-party to the marriage or alleged fraud against the government.
Assuming arguendo that plaintiffs had alleged the elements required to find fraud an action to annul based upon fraud pursuant to DRL 140(e) is a voidable marriage, not a void marriage. Void marriages — those that are bigamous or incestuous — do not require a declaration by the Court to nullify the marriage and are void ab initio (see DRL 6). In cases of a voidable marriage — including fraudulent marriages — the marriage is legal until annulled by the Court and it only becomes void from the time its nullity is determined by the judgment of the Court (DRL 7). The legality of the marriage status, and of all the consequences ordinarily flowing the marriage, from the time the voidable marriage relationship began until its annullment, remain undisturbed. Under New York Estates Powers & Trusts Law, the defendant is the surviving spouse of the decedent unless a judgment of annulment is "in effect when the deceased spouse died" (EPTL 5-1.1-A). As such, the post-death marital status change sought by the plaintiffs would have no effect on any property rights to the decedent's estate because of the specific requirement within EPTL 5-1.1-A that an annulment or declaration that the marriage was a nullity must have been in effect when the deceased died.
Unlike an action for divorce which can only be commenced by a party to the marriage (see DRL 170), an action to annul a marriage based upon fraud pursuant to DRL 140(e) can be maintained "during the life-time of the other party by the parent, or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage [emphasis added]." Plaintiffs do not specifically plead in the verified complaint what their "interest" in avoiding the marriage is though during oral argument plaintiffs' counsel argued that the plaintiffs' interest in avoiding the marriage is their concern for the decedent's reputation and the reputation of the decedent's children. Defendant's counsel argued at oral argument that "this is all about the distribution of proceeds of a medical malpractice case" and whether defendant "is entitled to that is a question for the surrogate, not for this Court."
Here, the plaintiffs contend that the defendant and the decedent entered into a fraudulent marriage, i.e. a voidable marriage. As such, this Court cannot annul the marriage effective on the date of the decedent's death: at best, this Court could, assuming arguendo that plaintiffs satisfied the elements of fraud, only annul the marriage effective on the date that a judgment of annulment is entered with the Office of the County Clerk. While plaintiffs posit that the only issue at stake in this case is the "reputation" of the decedent and the decedent's children the Court notes that the plaintiffs filed this action seeking an annulment immediately upon the resolution of the wrongful death action that has purportedly settled for $3,500,000 dollars. The Court notes that given the facts and circumstances here, this Court cannot nullify the decedent's marriage to defeat the defendant's right of election as it exists under New York law. Inasmuch as a judgment of annulment of the subject marriage under DRL 140(e) cannot defeat the defendant's right to claim his elective share in New York, plaintiffs no legal interest in avoiding the marriage and therefore lack standing in this action (see generally Tabak v. Garay, 237 AD2d 510, 655 NYS2d 92 [2 Dept.,1997] [the Court found that the action must be dismissed for lack of standing where the movant asserted no interest in nullifying the marriage other than that the movant was a relative of the decedent).
Assuming arguendo that the plaintiffs had satisfied the elements of fraud the action would also necessarily be dismissed because an action to annual a marriage due to fraud pursuant to DRL 140(e) must be commenced within the statute of limitations. CPLR 219(8) provides a statute of limitation of "six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it." This action was commenced more than twenty (20) years after the date of marriage and more than thirteen (13) years after the decedent's death.
It is undisputed that the decedent and the defendant were married on December 23, 1996. Plaintiffs contend that the decedent was aware of the alleged fraud on December 23, 1996 or even at an earlier date when the defendant and the decedent reached the agreement to marry for the exchange of $2,500. Assuming arguendo that the applicable six (6) year statute of limitations began to run on December 23, 1996 it would have expired on December 23, 2002 when the decedent was still alive and, based upon the facts as presented by the plaintiffs the decedent was aware of her agreement with defendant. Assuming arguendo that the statute of limitations was calculated two (2) years from the date of death of the decedent — June 28, 2004 — the period expired on June 28, 2006. It is undisputed that the plaintiffs knew of the marriage between the decedent and the defendant in 2004 but the plaintiffs did not commence an action for annulment based on fraud. Even assuming arguendo that the statute of limitations did not begin to run until two (2) years after the decedent's death — June 28, 2006 — it would have expired on June 28, 2012 more than five (five) years ago. The Court notes that there is not a provision that would call for the statute of limitations to be tolled while the plaintiffs — on behalf of decedent's estate — pursued the wrongful death action that ultimately resulted in the $3,500,000 settlement to decedent's estate. The Court notes that, assuming arguendo that the plaintiffs had alleged facts and circumstances sufficient to establish fraud, there was no requirement that the plaintiffs wait until the wrongful death action was resolved to seek an annulment prior to the expiration of the statute of limitations yet the plaintiffs chose to do so. The plaintiffs waited until they knew that the decedent's estate had benefitted from the wrongful death action in the sum of $3,500,000 before seeking the relief requested herein. The Court notes that the statute of limitation is not waiveable and, as such, the plaintiffs are bound by their disregard for the statute of limitations.
Third Cause of Action: Cruel and Inhuman Treatment DRL 170(1) and Abandonment DRL 170(2)
DRL 170 provides that "[a]n action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage..." and provides for seven (7) grounds for divorce. DRL 170 does not provide standing to anyone other than a party to a marriage to seek a divorce of the marriage.
Even assuming arguendo that the plaintiffs had standing the plaintiff in the case presented here cannot commence and maintain an action for divorce as the decedent died prior to the commencement of this action and the issuance of a judgment of divorce of this or any other Court (see Forgione v. Forgione, 231 AD2d 603 [2 Dept.,1996]). If a pending divorce action cannot be continued after the death of one of the spouses a divorce cannot be commenced after the death of one of the spouses.
Even assuming arguendo that the plaintiffs had standing they would not be able to establish grounds for a divorce based upon cruel and inhuman treatment pursuant to DRL 170(1). The plaintiffs also failed to plead specific acts on the part of defendant occurring within the five (5) year statute of limitations provided in DRL 210. The decedent died on June 28, 2004; therefore, the defendant could not have committed any acts of cruel and inhuman treatment against the decedent after that date. The Court notes that five (5) years from the death of the decedent was June 28, 2009 and the instant action was commenced approximately seven (7) years beyond the expiration of the applicable statute of limitations. Furthermore, the Court notes that plaintiffs' own verified complaint asserts that the decedent and the defendant essentially had no relationship other than a legal marriage: that they never resided together and were only casual, platonic friends. Even assuming arguendo that the plaintiffs had standing, they wholly failed to allege any acts by defendant against decedent prior to her death on June 28, 2004 that even viewed in a light most favorable to the plaintiffs could be considered grounds for divorce pursuant to DRL 170(1). Plaintiffs' cause of action for divorce based upon DRL 170(1) and DRL 170(2) must be dismissed for lack of standing to seek the relief requested.
Fourth Cause of Action: Irreconcilable Differences DRL 170(7)
Plaintiffs lack standing to maintain an action for divorce pursuant to DRL 170(7). Furthermore, plaintiffs cannot obtain a judgment of divorce pursuant to DRL 170(7) without an affidavit or other proof from the decedent stating under oath that the relationship between husband and wife had broken down irretrievably for a period of at least six months. The Court notes that under the facts presented here, the irretrievable breakdown would have had to have occurred more than six (6) months before the date the decedent died — June 28, 2004 — which was more than six (6) years prior to the enactment of DRL 170(7) in 2010.
Under the fact and circumstances presented here, the movants do not have standing to seek the relief requested in this action — either the post-death annulment of the marriage between the decedent and the defendant or the commencement of a post-death divorce action of the decedent against the defendant. As such, the action is dismissed with prejudice.
Conclusion
The relief requested by defendant in motion sequence #1 is granted to the extent indicated herein. The relief requested in paragraph "F" was withdrawn on the record.
Defendant's counsel shall serve plaintiffs' counsel with a copy of this decision and order with notice of entry within thirty (30) days.
This shall constitute the decision and order of this Court. ENTER: HON. JEFFREY S. SUNSHINE J. S. C.