Marino v. Anheuser-Busch, Inc., ANHEUSER-BUSC

• Decision Date: 24 April 1992
• Docket Number: INC,ANHEUSER-BUSC
• Court: New York Supreme Court — Appellate Division
• Parties: Gena Hartman MARINO, Individually and as Administratrix of the Estate of David F. Marino, Deceased, Appellant-Respondent, v., Linden Chemical Plastics, Inc., and Caterpillar Tractor Company, Respondents-Appellants and Third-Party Plaintiffs. Over & Under Piping Contractors, Inc., Third-Party Defendant-Respondent.

Page 68

583 N.Y.S.2d 68

182 A.D.2d 1073

Gena Hartman MARINO, Individually and as Administratrix of the Estate of David F. Marino, Deceased Appellant-Respondent, v. ANHEUSER-BUSCH, INC., Linden Chemical Plastics, Inc., and Caterpillar Tractor Company, Respondents-Appellants and Third-Party Plaintiffs. Over & Under Piping Contractors Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 24, 1992.

Davoli, McMahon, Kublick & Stanley, P.C. by Joseph Stanley, Syracuse, for appellant-respondent.

Hiscock & Barclay by Robert Barrer, Syracuse, for respondents-appellants, Anheuser-Busch, Inc. and Linden Chemical.

Costello, Cooney & Fearon by Thomas Taylor, Syracuse, for respondent-appellant, Caterpillar Tractor Co.

MacKenzie, Smith, Lewis, Michell & Hughes by Barney Bilello, Syracuse, for third-party defendant-respondent, Over & Under Piping Contractors.

Before DENMAN, P.J., and BOOMER, BOEHM, FALLON and DAVIS, JJ.

MEMORANDUM:

Supreme Court erred in refusing to grant defendants' motions for summary judgment in their entirety.

Plaintiff's claims for pecuniary loss sustained as a result of decedent's death depend on proof of a common-law marriage in either Texas or Pennsylvania. Supreme Court correctly dismissed those causes of action based on a common-law marriage in Texas; however, the court erred in refusing to dismiss those causes of action based on a common-law marriage in the State of Pennsylvania. Although New York does not recognize common-law marriages, "a common-law marriage contracted in a sister State will be recognized as valid here if it is valid where contracted" (Mott v. Duncan Petroleum, 51 N.Y.2d 289, 292, 434 N.Y.S.2d 155, 414 N.E.2d 657).

Plaintiff's contention that she and decedent entered into a common-law marriage in Pennsylvania is based on weekend excursions to Pittsburgh to visit friends and attend football games, at which times decedent and plaintiff were introduced as husband and wife.

In order to create a common-law marriage under Pennsylvania law, there must be "an exchange of words in the present tense, verba de praesenti, spoken with the specific purpose that the legal relationship of husband and wife be thereby created" (Commonwealth v. McLean, 387 Pa.Super. 354, 364, 564 A.2d 216, 220, quoting Commonwealth v. Smith, 511 Pa. 343, 352, 513 A.2d 1371, 1375-1376,cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801). "Where a relationship between a man and a woman is 'illicit and meretricious' in its inception, it is presumed to so continue during the cohabitation of the parties. That presumption will be rebutted only if the consent of both the parties to enter into a valid marriage is established by clear and convincing evidence" (In re Estate of Kovalchick, 345 Pa.Super. 229, 234, 498 A.2d 374, 377 [emphasis in original]; Canute v. Canute, 384 Pa.Super. 60, 557 A.2d 772, 774; see, Cross v. Cross, 146 A.D.2d 302, 541 N.Y.S.2d 202; Matter of Peart v. Bross Line Construction Co., 45 A.D.2d 801, 357 N.Y.S.2d 53). In this case, plaintiff was not divorced from her husband when she and decedent first visited Pennsylvania. Thus, their relationship was illicit at its inception. On subsequent trips to Pennsylvania, plaintiff and decedent stayed with friends who knew that they were not married. Moreover, nowhere does plaintiff contend that she and decedent discussed marriage plans while in Pennsylvania. Absent any evidence that plaintiff and decedent sought to establish the legal relationship of...