In the Matter of Emiro, 2004 NY Slip Op 51149(U) (NY 6/16/2004)
| Decision Date | 16 June 2004 |
| Docket Number | 1718/98. |
| Citation | 2004 NY Slip Op 51149(U) |
| Court | New York Court of Appeals Court of Appeals |
| Parties | IN THE MATTER OF THE APPLICATION OF VALERIE EMIRO, As Administratrix of the Goods, Chattels and Credits which were of STACEY A. EMIRO, Deceased. |
PIRROTTI LAW FIRM, LLC, Scarsdale, New York, Attorneys for Petitioner.
KAMINSKY & RICH, ESQS., White Plains, New York, Attorneys for Respondent.
In this miscellaneous proceeding to compromise certain causes of action emanating from decedent's death, decedent's mother and administratrix of her estate ("petitioner") seeks: (i) to disqualify decedent's father ("objectant") from receiving any of the settlement proceeds; (ii) to seal certain court records; and (iii) related relief. Objectant contests his prospective disqualification as a presumptive distributee.
A hearing on the issue of whether objectant should be disqualified from receiving any settlement proceeds as a presumptive distributee was conducted before a Court Attorney/Referee. At the hearing, petitioner testified on her own behalf and called, as witnesses-in-chief, decedent's younger sister, two of decedent's maternal aunts, and a maternal cousin of decedent. Objectant testified on his own behalf. He produced no other witnesses.1
Based upon the credible evidence adduced at the hearing, the court hereby disqualifies objectant as a distributee of decedent, under the applicable provisions of EPTL 4-1.4(a).
Additionally, the court approves of the settlement and allocation of the settlement proceeds, to the extent set forth, infra, but denies the application to seal court records.
Decedent died intestate on May 25, 1998, at age 29, allegedly a victim of medical malpractice. She never married or had children, and her presumptive intestate distributees are petitioner and respondent.
On October 5, 1998, petitioner obtained letters of administration pertaining to decedent's estate. Subsequently, petitioner timely commenced separate actions against the physicians who treated decedent at or around the time of her death, and against a pharmaceutical company which had manufactured a certain prescription drug, which allegedly contributed to decedent's death.
In November 2002, petitioner commenced the instant proceeding to compromise the action solely against the pharmaceutical company.
The undisputed testimony and evidence elicited at the hearing indicates that petitioner and objectant were married in August 1967. The marriage produced two children: decedent, who was born in June 1968, and decedent's sister, who was born in 1973. Throughout the marriage, the parties resided in a home located in Mount Vernon, Westchester County. Most of petitioner's extended family — her parents, sisters and other relatives — resided approximately one block away from the parties' marital residence.
In or about January 1986, the parties separated. Shortly thereafter, objectant commenced an action for divorce. In October 1986, four months after decedent had reached the age of 18, the parties entered into a stipulation, settling the divorce action ("Stipulation"). The Stipulation obligated objectant to pay child support to petitioner for decedent's benefit, only if decedent was enrolled in school. By this time, decedent was not attending school and was employed. Furthermore, following the divorce, petitioner resided at the marital residence with decedent until her death.
In the interim, subsequent to the divorce, objectant remarried and had a child with his new wife. He remained in Westchester County through the end of 1987, then moved to New Mexico in 1988. In early 1989, he spent at least one month in Florida with decedent's cousin, looking for employment. During several periods between July 1989 and March 1993, he remained in Westchester sporadically, pursuing employment. By September 1996, objectant and his new family moved to New Hampshire, where they have been domiciled ever since.
At the hearing, petitioner and her witnesses-in-chief testified consistently with respect to the parties' marital and family life and, in particular, objectant's relationship with decedent during the marriage. In essence, the foregoing witnesses testified that: (i) objectant rarely spent time with petitioner or his daughters, and he never gave them any money on any occasion; (ii) objectant constantly abused decedent verbally, and, on numerous specific occasions, he "smacked," "kicked," "punched," and/or "beat" decedent, sometimes to the point of drawing blood, when she failed to respond to him in a timely fashion; (iii) decedent's aunts bought virtually all of decedent's clothes and Christmas gifts during her childhood, and one of them regularly contributed to rent payments petitioner and objectant made during the marriage prior to their full ownership of the family residence; (iv) objectant routinely dispatched petitioner and his daughters to the residence of petitioner's extended family (a/k/a "the house") for family events, daily meals, and shelter; (v) objectant spent "thousands" of dollars on his collection of model trains, while regularly neglecting to purchase any necessities for petitioner or his daughters; and (vi) objectant routinely spent numerous hours at home while he was allegedly employed. Petitioner also testified that she had to work during the marriage to support her daughters, and that objectant was "unemployed" more often than not during the marriage. Petitioner and decedent's sister also testified that objectant never gave them or decedent any emotional support or encouragement, either during the parties' marriage or after the divorce, and that they all lived in constant "fear" of objectant.
Objectant denied all of foregoing allegations at the hearing.
Additionally, petitioner, decedent's sister and decedent's cousin all testified to an event in January 1986 which, in essence, culminated in the parties' separation. On this occasion, petitioner and decedent confronted objectant at the home of objectant's alleged paramour, at which time objectant grabbed decedent and injured her arm. Objectant denied injuring decedent during this event, but his denial was effectively impeached at the hearing.
As to decedent's relationship with objectant subsequent to the divorce, decedent's sister testified that she saw objectant on "five to six" occasions, and, to her knowledge, decedent saw him no more than "four or five" times. Petitioner testified that she did not prevent either decedent or decedent's sister from contacting or meeting with objectant subsequent to the divorce. She also testified that objectant did not contribute any money toward the household subsequent to the parties' separation in early 1986, and that she was forced to obtain public assistance in order to meet her family's expenses.
With respect to decedent's death, both decedent's sister and decedent's cousin, who once considered objectant to be "like a father" to him, testified that they had to contact an obscure relative of objectant to locate him. They further testified that when objectant arrived for the wake and funeral, he showed virtually no remorse or emotion, and, instead, discussed his own personal and financial problems. Also, decedent's sister testified that when objectant arrived at the wake, he looked through decedent's checkbook, and that objectant did not contribute toward any of the funeral expenses or headstone.
According to objectant, shortly after his marriage to petitioner, he served in the armed forces from October 1967 until September 1969. Thereafter, he embarked on what is best characterized as an extremely sporadic employment history, primarily as a truck driver and in transportation operations, for the balance of the parties' marriage. In fact, objectant testified that the highest gross wages he had ever earned in any one year during his marriage to petitioner was approximately $25,000.00, in 1985. He further testified that, during the marriage, he turned over all of his earnings to petitioner, who managed all of the parties' marital finances.
Objectant also testified that, subsequent to the parties' divorce, he regularly kept in contact with decedent, including by routine dispatch of greeting cards to her on holidays and birthdays.2 In all, objectant testified to approximately six specific encounters with decedent between 1986 and 1993, and that he never saw decedent alive again subsequent to 1993.
With respect to his knowledge of decedent's college education subsequent to the divorce, objectant testified that he first learned of this information at decedent's wake and funeral. He also admitted that he did not pay for any medical or educational expenses on decedent's behalf after 1986.
As to his learning of decedent's death, objectant testified that he and his mother were visiting a friend in Indiana when he was contacted through the efforts of decedent's cousin. He rushed to New York to attend decedent's funeral, and was in "shock" at her death. While he admitted that he did not pay for any funeral expenses, he testified that he regretted not being permitted to "stay in" decedent's life, stating, in essence, that petitioner had strongly discouraged both decedent and decedent's sister from maintaining any contact with him after the parties' divorce.
At the close of her direct case, petitioner moved, in limine, to have the pleadings conform to the proof adduced at the hearing, to ensure that the court would consider disqualifying objectant on the alternate grounds of abandonment and/or failure to support. In response, objectant cross-moved, in limine, to have the court limit its inquiry to whether he abandoned decedent. The court hereby grants petitioner's application and denies the cross application, for the reasons set forth, infra.
Pursuant to CPLR 3025(c), pleadings may be conformed to the proof at any time upon such terms as may be just (see ...
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