K.A.L. v R.P.

[*1] K.A.L. v R.P. 2012 NY Slip Op 50652(U) Decided on March 19, 2012 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2012
Supreme Court, Monroe County

K.A.L. o/b/o S.S.P., Plaintiff,

against

R.P., Defendant.



1114541



For Plaintiff E. J. L., II

Marilee Sercu, Esq.

For Defendant K. L. L.

Michael Hagelberg, Esq.

Richard A. Dollinger, J.

The Plaintiff seeks to annul the marriage of her deceased father, in a dispute linked to the surviving wife's right of election under Florida law. The surviving spouse, who married the plaintiff's father on his death bed, seeks dismissal of the complaint, alleging that the daughter lacks standing to annul the marriage and fails to state a cause of action for either physical or mental incapacity or fraud or duress to void the marriage under New York's Domestic Relations Law.

THE UNDISPUTED FACTS

The essential facts are undisputed. The couple were married on August 31, 2011 in a civil ceremony in the spouse's home in Webster, New York. The husband died thirteen days later, on September 13, 2011. The wife was 48. The husband was 69 and suffering from lung cancer.

The couple had known one another for a long time prior to the marriage. The daughter describes the relationship as "on and off again." The wife calls it a twenty year "emotional" and "intimate" relationship. The two lived apart: the wife lives and has lived in Rochester and the proof suggests that, prior to the marriage, she only infrequently visited the husband in Florida, where he was a permanent resident until May 2011. In May of that year, the husband was diagnosed with stage-four lung cancer that had spread to his brain. After undergoing brain surgery to remove a tumor in Florida, the husband returned to Rochester, where both his daughter and the Defendant reside. The parties agreed that he [*2]would stay at the defendant's home while in Rochester and the proof is unrebutted that he lived in the defendant's home from his arrival in the Rochester area until his death. During this time, the wife was not working, but the daughter alleges that most of the decedent's care was administered by members of his family while he was living with the wife prior to the marriage.

It is undisputed that on August 26, 2011, the daughter and the wife were told by his attending physician that the decedent had two weeks left to live. On or around that date, the decedent's doctor ordered palliative hospice care for the decedent, tripling his pain medication and ending all other medication, including insulin.

On August 31, 2011, two major events occurred: the wedding between the decedent and the defendant, and the signing of a codicil to the decedent's will.

There is no dispute that a marriage ceremony occurred in the defendant's house on August 31, 2011, at approximately 5:30 pm. However, in an unusual twist, there is no evidence before this court in the submissions to prove the existence of the marriage. There was no marriage license submitted in the moving papers. The wife, in her affidavits, alleges that she had arranged for the town clerk to come to her house to issue the license. The daughter denies any knowledge of the issuance of the marriage license. There is no affidavit from the presiding justice, who, it is undisputed, officiated at the marriage. There are no affidavits from any of the witnesses to the marriage: just the affidavit from the spouse, asserting that a wedding ceremony occurred. But, these affidavits appear unnecessary for the wife to establish that a marriage ceremony occurred as the daughter does not contest that a marriage ceremony occurred. It is also undisputed that the decedent's son — the daughter's brother — attended the ceremony. There is no affidavit from the brother before the court.

It is also undisputed that the daughter objected to the marriage ceremony. In her affidavit, the daughter alleges that her father told her on the day of the wedding that he was not getting married. The daughter asserts that the defendant then met with the father and he then told the daughter that he wanted to marry the defendant because "she wants to be able to say she married the greatest man on the planet." It is also undisputed that the daughter sought to stop the wedding. She attests, in her rebuttal affidavit, that she spoke with the town justice before he entered the house and told him "it was not appropriate and that my father had no idea what was going on." The town justice ignored the daughter. The daughter states that she tried to stop the wedding numerous times — apparently in the presence of her father — but "did not want to cause more stress on my dying father." The daughter also alleges that she made her feelings "very clear" to the wedding participants and the witnesses, which presumes she was present when the wedding occurred or just prior to it. The daughter acknowledges that she left her father's bedroom just prior to the wedding occurring. Based on these facts, the court can only conclude that the daughter was present in the house when her father married the defendant.

Importantly, there is no evidence before the court that the daughter talked to her father after her father told that he wanted to marry the defendant. The daughter alleges that he was under substantial pain medication and did not recognize other family members on or about the time of the wedding.

It is undisputed that the husband executed a codicil on that day, although the parties disagree on whether it preceded or followed the marriage ceremony. According to [*3]documents before this court and based on the uncontradicted statement from the daughter, the will was overseen by an attorney, who the wife describes as "my attorney."[FN1] The wife's attorney interviewed the decedent. There is no affidavit before the court from the attorney indicating the nature of the attorney's observations or his colloquy with the decedent. However, the decedent signed the codicil in front of three witnesses. In the codicil, the decedent named the wife's husband as the executor of his estate and listed a child, who was not provided anything under the will or codicil. the decedent swore that he was acting freely and voluntarily and was "sound mind" and "under no constraint or undue influence."

All three witnesses to the codicil were present in the room in the defendant's house, presumably for some amount of time. The witnesses included decedent's son-in-law, the husband of the plaintiff. A second witness was a close friend of the decedent's for 60 years. The witnesses signed an attestation clause in the codicil, affirming that to the best of their knowledge, the decedent was of sound mind and under no constraint or undue influence. The attorney notarized their signatures.

Based on this information, offered by the plaintiff, there is no dispute that the decedent was of sound mind and free from any constraint or undue influence at the time of the execution of the codicil — which, based on undisputed facts, was all - but simultaneous with his marriage.

THE FACTUAL DISPUTE OVER THE DECEDENT'S STATUS

In the papers before the court, the only major dispute involves the father/husband's physical condition at the time of the marriage. The parties quibble over who told what to whom and when — was the marriage scheduled before the codicil signing or vice versa — but the court declines to consider this irrelevant question.[FN2]

The Plaintiff contends that the decedent was incapable of consenting to marriage for want of understanding, due to his advanced lung cancer, which had spread to the brain, and to the high amounts of pain medication he was taking at the time of the marriage. In [*4]support of her claim, she has submitted corroborating evidence in the form of sworn statements by relatives and close friends of the decedent, which allege episodes of confusion and disorientation on the part of the decedent around the time of the marriage.[FN3] The Plaintiff alleges, for example, that the decedent did not recognize his granddaughter on the day of the wedding, and consistently called her by the plaintiff's name instead of her real name. She also alleges that, on the day of the wedding, the decedent was unable to form complete sentences, was unresponsive to questioning, and was unaware of his surroundings. During this time she alleges that he confusedly said first that he would never marry the defendant, and then that he would marry her.

The plaintiff also alleges that the defendant, on the day before the wedding, intentionally gave the decedent medications that the doctor had ordered be stopped, namely steroids and insulin injections. She alleges further that the decedent had explicitly warned the plaintiff to protect his personal belongings and paperwork from the defendant, and to protect herself from the defendant.

The wife disputes this evidence. However, neither party has produced any medical or other expert testimony regarding the decedent's health. The wife argues that the presiding judge at the wedding and the attorney overseeing the codicil are, by their participation, evidence that the husband was competent to marry her, even though there is no sworn statement from either professional before the court. The daughter's counsel, at oral argument, informed the court that the daughter was not able to obtain medical records for her father because she lacked a medical release form under Health Insurance Portability and Accountability Act ("HIPPA"). The wife's counsel did not dispute that the records had not been made available to the daughter.[FN4]

PROCEDURAL STATUS OF THE MOTIONS

In reviewing this matter, the court notes that it is somewhat unclear on what basis on which the parties are moving for relief. The plaintiff seeks an order directing that the marriage be declared a nullity, which can only be considered a pre-answer application for summary judgment pursuant to CPLR 3212. While not specified, the defendant is apparently moving pursuant to CPLR 3211(a)(7) as she claims that the complaint fails to state a cause of action. The standards for review by this court on both motions are different.

Under the motion to dismiss under 3211(a)(7), the only question is whether the complaint states a cause of action. When assessing the adequacy of a complaint, the court must afford the pleadings a liberal construction, accept the allegations of the [*5]complaint as true and provide plaintiff the benefit of every possible favorable inference. Mehl v Mehl, 80 AD3d 674, 675-76 (2nd Dept. 2011); Gianis v Gianis, 67 AD3d 963 (2nd Dept. 2009); Bordeleau v. State, 74 AD3d 1688 (3rd Dept.. 2010); 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 (2002); Wanser v Wanser, 214 AD2d 611 (1995). The court "must examine the four corners of the complaint, and give the plaintiff the benefit of every possible favorable inference." Stroke v. Stroke, 283 AD2d 992 (4th Dept. 2001)(in order to dismiss, the court accepts as true the factual allegations of the complaint and there is no reasonable view of the facts which supports such a cause of action"); Hirschhorn v Hirschhorn, 194 AD2d 768, 768 (1993); Leon v Martinez, 84 NY2d 83 (1994); Linger v Linger, 2010 NY Slip Op 33342U (Sup. Ct. New York Cty 2010)

Under 3212, the question is whether the complaint and the supporting affidavits contain sufficient evidence, if believed, to prove the cause of action. Summary judgment is a drastic remedy that will only be granted where there is no triable issue of fact. Barclay v Denckla, 182 AD2d 658 (2nd Dept. 1992); Andre v Pomeroy, 35 NY2d 361 [1974]); Dyckman v Barrett, 187 AD2d 553 (2nd Dept. 1992). The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of their day in court. Russell v A. Barton Hepburn Hosp., 154 AD2d 796 (3rd Dept. 1989). The moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact and if they fail, the motion is denied. Zarr v Riccio, 180 AD2d 734 (2nd Dept. 1992). If a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form. Romano v St. Vincent's Med. Ctr. of Richmond, 178 AD2d 467 (2nd Dept. 1991); Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Because the papers do not provide a clear indication of the basis for the motion and cross-motion, this court will consider the cross-motion first because if the complaint — and the accompanying affidavits — do not set forth the basis for a claim to nullify the marriage, then the complaint is dismissed pursuant to CPLR 3211(a)(7) and the defendant's motion for summary judgment is moot.

STANDING UNDER SECTION 140(C) OF THE DOMESTIC RELATIONS LAW

In moving to dismiss this complaint, the wife first argues that the daughter lacks standing to bring this action on behalf of her deceased father. The Domestic Relations Law gives any interested relative of a person who lacked mental capacity to enter into a marriage standing to bring an action to annul the marriage on this ground. NY DOM. REL. LAW §140(c).[FN5] The statute provides:

an action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage."

Domestic Relations Law § 140(c). Three requirements are necessary under this section: [*6]the plaintiff must allege that her father was "mentally ill," that she is a relative and she has an "interest to avoid the marriage." The plaintiff, the decedent's daughter, qualifies as a "relative" under the statute. Tabak v. Garay, 237 AD2d 510 (2nd Dept. 1997). Thus, she meets the first prong of the test under Section 140(c).

But, in a close reading of the complaint and her affidavits before the court, the daughter does not allege any facts sufficient to meet the first prong of the test: that her family was "mentally ill" at the time of the marriage. Her complaint alleges two grounds for annulling the marriage: fraud or undue influence by the wife and the decedent's "inability to consummate the marriage." Complaint ¶ s 8 & 9. There is no mention in the complaint that the decedent was "mentally ill" at the time of the marriage. In the daughters' affidavits, she alleges that her father was "physically incapacitated" at the time before the wedding. Complaint ¶ 32. She states: "there was no way, based on the physical state of my father, that he had any ability to consent to marry the defendant." Complaint ¶ 34. She alleges he was "on high amounts of pain medication which prevented him from being able to consent to marry the defendant." Complaint ¶ 35. She concludes that the father was "physically incapable of informed consent to have married the defendant." Id. ¶ 41.However, despite these comments, the daughter never alleges that her father was "mentally ill" as required by Section 140(c).

Furthermore, while there is no express allegation that the father was "mentally ill," it is undisputed that there is no competent evidence that he was mentally ill on the day he got married and the day he signed the codicil to the will. In similar cases, objectants, seeking to nullify marriages, have produced substantial expert testimony regarding the mental health of the deceased party in order to justify a claim for nullification. See Campbell v. Thomas, 36 AD3d 576 (2nd Dept. 2007)(opponents presented affidavits of physicians, family members and pertinent medical records that revealed decedent lacked capacity to understand his actions before his marriage); Jordan v. Clinton, 18 AD3d 817, 818 (2nd Dept. 2005)(certified hospital records showed patient's mental condition). Here, there are no physician's affidavits or any proof from any professional on the decedent's mental status on the day of the marriage.

The daughter's complaint also fails to meet the test required by the third prong of the Section 140(c), which requires an allegation that the plaintiff daughter has "an interest to avoid the marriage." The complaint contains no suggestion of any interest: there is no allegation that her personal finances or any other matter will be impacted by granting the suggested relief.

In her affidavits before the court, the wife suggests why her interest might be impacted when she avers that the wife is now seeking, through Florida law, "her marital share of the father's estate pursuant to the laws of Florida." However, the daughter's claims do not give her "an interest to avoid the marriage" because this court, even if it annulled the marriage, can not expunge the wife's right of election.

Under New York law only bigamous and incestuous marriages are considered void ab initio. NY DOM. REL. LAW §6. Marriages that are invalid for other reasons, including incapacity and fraud — the grounds asserted here are voidable from the time their nullity is declared by the court. NY DOM. REL. LAW §7. An annulment by the court in such cases terminates the marriage from the time of the judgment, but does not have retroactive effect. Under New York's Estates Powers & Trusts Law, the wife is the surviving spouse unless a judgment of annulment is "in effect when the deceased spouse died." NY E.P.T.L. §5-1.2(a)(1). This court can not annul the marriage [*7]effective on the date of the husband's death: at best, this court, under Section 140(c), can only annul the marriage effective only on the date that a judgment of annulment is entered with the court clerk. Bennett v Thomas, 38 AD2d 682 (4th Dept. 1971). Therefore, this court can not nullify the decedent's marriage to defeat the wife's right of election as it exists under New York law.[FN6] As one New York commentator noted:

Unfortunately, any efforts by a relative or friend to annul a voidable marriage may be futile because voidable marriages are valid unless and until they are attacked in an annulment proceeding. New York is one of the few states where after-death challenges are permitted, yet this status change has no effect on property rights to the decedent's estate because of the specific requirement within the disqualification statute that an annulment or declaration that the marriage was a nullity must have been in effect when the deceased died. A voidable marriage may be annulled after death, but the "surviving spouse" would still be able to take an elective share of the decedent's estate.

Ratigan, The Right of Election and Fraudulent Marriages in New York, LEXIS 2011

EMERGING ISSUES 6065. p. 2 (November, 2011). Because this court can not annul the marriage under Section 140(c) and defeat the wife's right to claim her elective share in New York or Florida, the daughter has no "interest in avoiding the marriage" and hence, has alleged no valid claim under Section 140(c).

As an alternative basis for defeating the marriage, the daughter's claims that her father was "physically incapacitated" and unable to physically consummate the marriage. However, when seeking relief under this claim, the daughter, as an interested relative does not have standing to bring an action for physical incapacity, which actions are limited to the married parties. NY DOM. REL. LAW §140(d). Subdivision (d) does not contain the same broad right of "any relative" to challenge the marriage because of the decedent's physical incapacity. Davis v Davis, 71 AD3d 13 (2nd Dept. 2009) (Domestic Relations Law §140 (d) provides, inter alia, that a spouse's incurable physical incapacity for sexual relations, unknown to the other spouse at the time of marriage, is a basis for an annulment, but only by a party to the marriage).

THE MARRIAGE TESTED UNDER THE MENTAL HYGIENE LAW

This court has also considered whether the plaintiff states a cause of action under Section 81.29(d) of the Mental Hygiene Law, which permits a court to revoke a contract entered into by an incapacitated person. However, that statute specifically requires that the court have appointed a guardian for the incapacitated individual, a factor not present here. Matter of Kaminester, 26 Misc 3d 227 (Sur. Ct. NY County 2009); Matter of Johnson, 172 Misc 2d 684, 685 N.Y.S.2d 780, 786 (Sup. Ct. Suffolk County 1997) (marriage constitutes a contract within the meaning of Mental Hygiene Law §81.29 (d)[and] as such, it is subject to revocation by the court on the grounds that a party thereto for whom a guardian has been appointed was incapacitated at the time it was contracted rendering such party incapable of consenting thereto by reason of want of understanding). This court also notes that there is substantial judicial comment regarding the conditions under which a [*8]marriage can be annulled under the Mental Hygiene Law — the mental incapacity must be "so marked as to show an inability to comprehend the subject of the marriage contract" or "a diagnosis after the wedding that a spouse was incompetent before the wedding, although having some weight, is not conclusive on the issue of the sanity of the allegedly mentally incapable spouse on the wedding day." Scampone v. Scampone, NYLJ, July 28, 1992, p. 25 (Sup. Ct. Westchester County 1992), citing Wilson v. Mitchell, 10 Misc 2d 559 (Sup. Ct. Kings Cty. 1957) and Rattray v. Hunting, 11 AD2d 785 (2nd Dept. 1960). However, these cases are clearly different from the case here: in this case, there is no suggestion that the decedent was insane or "mentally incapable."

EQUITABLE ESTOPPEL UNDER THE SECOND

DEPARTMENT DOCTRINE OF IN RE BERK

This court notes that, in rare cases, New York courts have invoked equitable estoppel to void a marriage ab initio and defeat a much younger spouse's right to an elective share. In re Berk, 71 AD3d 883 (2nd Dept. 2010); Matter of Atiram, 83 AD3d 1055 (2nd Dept. 2011). This court declines to follow this authority in this case. First, a proper request to invoke equity to defeat the right of election belongs in Surrogate's court or perhaps in the probate courts of Florida. Second, the facts in Berk were substantially different as there was uncontroverted proof that the decedent, 47 years older than his alleged caretaker wife, had been diagnosed with dementia and a physician provided an expert opinion that the decedent was "incapable of entering into a binding contract." In re Berk, 71 AD3d at 884; see also Levine v. Dumbra 604 N.Y.S.2d 207 (2nd Dept. 1993) (annulment on the grounds of mental incapacity was upheld on the testimony of three psychiatrists that a wife, due to a severe mental disease resulting in a reduction in the number of brain cells, was incapable of understanding the nature, consequences, and effect of marriage). In re Berk, the court declined to permit the wife to assert her right of election, noting that the wife:

knowing that a mentally incapacitated person [was] incapable of consenting to a marriage, deliberately [took] unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of that person's intended beneficiaries

In re Berk, 71 AD3dat 885, citing Campbell v Thomas, 73 AD3d 103, 120 (2nd Dept. 2010). There is no such proof here and, in the absence of even allegations of mental illness or mental defect, the court declines to invoke equity to annul this marriage.

THE COMPLAINT ALLEGATIONS OF FRAUD AND

UNDUE INFLUENCE UNDER THE COMMON LAW

While a marriage can be voided upon evidence of fraud, the allegations in this case do not state a cause of action for common law fraud. 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); Lazar v. Lazar, 33 Misc 3d 1202A (Sup. Ct. Erie Cty 2011). A claim of fraud can be the basis for voiding a marriage. NY DOM. REL. LAW §7 (4). In order for the daughter to succeed on her claim that the marriage can be voided for fraud, she must allege the defendant made premarital representations to her father upon [*9]which he relied and which were material to the degree that, had such representations not been made, her father would not have consented to the marriage. See Kober v Kober, 16 NY2d 191, 195 (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); Brazil v Brazil, 235 AD2d 611, 613 (3rd Dept. 1997) (the misrepresentation alleged must be of such a nature that an ordinarily prudent person would have been deceived).

Interpreted most favorably to the daughter, the facts alleged in the complaint and the accompanying affidavits do not provide any basis for concluding that the wife defrauded her husband. First, there is no allegation that the wife made any misrepresentations to the decedent. There is no allegation that she told the decedent anything that was untrue. Second, there is no allegation that the decedent justifiably relied on any misrepresentation by the wife. In short, while the daughter claims "fraud," there is no specific factual allegation — in the complaint or the responding affidavits — that the wife engaged in any fraudulent conduct. High Tides, LLC v. DeMichele, 88 AD3d 954 (2nd Dept. 2011) (conclusory allegations of fraud are insufficient to satisfy the pleading requirement of CPLR 3016(b)); Doe v. Hemophilia Ctr., 244 AD2d 853 (4th Dept. 1997).

In contrast, the daughter, by admission, virtually concedes that no fraud occurred. The undisputed facts establish that the daughter discussed marriage with the defendant with her father, who initially opined that he did not want to marry the defendant. The daughter admits that her father later told her he wanted to marry the defendant. The defendant told the daughter that she was going to marry the decedent before the wedding occurred. The daughter objected to the marriage in the presence of her father and yet he continued the marriage ceremony. It is undisputed that the decedent's relatives — including her brother — attended the wedding. The daughter asked her brother to take pictures. There was no isolation of the decedent during the day of the wedding, a factor, that if alleged by the daughter, might have suggested concealment by the wife. The decedent interacted with the daughter's attorney on the day of the wedding and there is no evidence that the decedent asked the attorney to intervene. Simply put, there is no allegation to support a claim of fraud by the wife and this claim must be dismissed.

The same analysis dooms a claim based on undue influence. In re Mildred M. J., 43 AD3d 1391 (4th Dept. 2007), the court defined undue influence as " the product of persistent and subtle suggestion imposed upon a weaker mind and calculated by the exploitation of a relationship of trust and confidence to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another." See also Matter of Collins, 124 AD2d 48 (4th Dept. 1987). There is simply no allegation in the complaint or the supporting affidavits to support such a conclusion in this case. Matter of Neustein, 83 AD3d 845 (2nd Dept. 2010). The daughter never contends that the wife "overwhelmed" her father's will to the point where it was "manipulated" for her benefit. Undisputed facts suggest otherwise. The daughter alleges that she and her family were continually present during the time that he father was living at the wife's house. The daughter, even on the day of the marriage, spoke to her father. The father told his daughter that he was going to marry the wife. There are no allegations in this complaint, even if believed, that are sufficient to justify nullifying the marriage on the basis of undue influence.

CONCLUSION[*10]

In considering all the allegations in this case, this court notes that an "800-pound gorilla[FN7]" haunts this case. Two things happened on August 31, 2011, and each carried a consequence to the daughter. First, her father, in the presence of her husband and an attorney, executed a codicil to his will. In the sworn statements, the attesting witnesses, including the daughter's husband, swore that the decedent was of sound mind and body and had the capacity to make a codicil will. Second, at nearly the exact same time, in the same place, in front of a justice of the peace and many of the same individuals, the decedent married his wife. As a consequence of the marriage, the wife now asserts a heretofore unavailable right of election against the decedent's estate in Florida. In analyzing the decedent's choice to get marred in the shadow of death, this court reflects as another court did:

Mindful of its position as a court of equity, this court is not, however, inclined to begin looking behind the validity of every marriage entered into when the decedent may have been in a weakened or compromised state, particularly where, as here, the person performing the ceremony was satisfied as to decedent's competence to do so.

Estate of Douglas Creighton, 240 N.Y.L.J. 16 (Sur. Ct. Suffolk Cty. 2008).

Yet, the daughter contends that her father was not of sound mind and a victim of either fraud or undue influence when he got married — before a non-aligned lawyer-justice of the peace — but was not under any influence or incapacity when he executed did the codicil before another esteemed lawyer of this community, whom she had directed to her father's bedside.[FN8] This conundrum — a litigant who claims her father lacked capacity to get married, but simultaneously had the capacity to sign a codicil to his will to favor her immediate family — casts a pall of inconsistency over this case.

This court finally notes that the plaintiff, after the assertion of the motion to dismiss under CPLR 3211(a)(7,) did not seek leave to amend her complaint. The filing of the motion to dismiss extended the defendant's time to answer. CPLR 3211(f). The time in which plaintiff could amend the complaint is extended as of right. CPLR 3025(b). STS Mgmt. Dev. v. New York State Dept of Taxation & Fin., 254 AD2d 409 (2nd Dept. 1998); Roni LLC v. Arfa, 74 AD3d 442 (1st Dept.. 2010). In the absence of an amended complaint, this court declines to consider whether new facts or new allegations regarding the events preceding and including August 31, 2011 could state causes of action that could survive a motion under 3211(a)(7). Ramos v Baker, ___ AD3d ___, 937 N.Y.S.2d 328 (2nd Dept. 2012); Lucido v. Mancuso, 49 AD3d 220 (2nd Dept. 2008) (the legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt); G.K. Alan Assoc., Inc. v. Lazzari, 44 AD3d 95 (2nd Dept. 2007).

The complaint fails to state a cause of action to annul this marriage on the basis of mental or physical incapacity, fraud or undue influence. The defendant's motion to dismiss this complaint [*11]is granted and that portion of the cross-motion seeking further relief, including sanctions and attorneys fees is denied. The plaintiff's motion to declare the marriage a nullity or annul the marriage is denied as moot as is the request to produce a copy of the marriage license.

Dated: March 19, 2012____________________________________

Hon. Richard A. Dollinger, A.S.C.J. Footnotes

Footnote 1:According to the Plaintiff, she had scheduled a meeting at six o'clock p.m. with her attorney for the father to sign a codicil to his will. While the parties dispute the motivation of the daughter and the impact of the codicil, it is immaterial to this court, as this court is not involved in determining the rights of any party under the codicil or their rights under Florida law.

Footnote 2:Plaintiff contends that the Defendant learned about the appointment for the dying father to execute a codicil to his will on that morning. The daughter alleges that the defendant left the residence and returned a short time later. According to the daughter, only later in the day, just as the attorney was scheduled to arrive, did the wife tell the daughter that she had scheduled a wedding with her father at five thirty p.m. It is unclear when the wife and daughter had this conversation, but the daughter avers that she learned that the defendant had scheduled the marriage ceremony just before the arrival of the daughter's attorney to execute a codicil.

The defendant's version of events flips the sequence. The wife contends that she told the daughter sometime earlier in the day that the marriage was scheduled and would occur that day. The Defendant contends that she was unaware of the plan to have the Codicil signed until after she announced the marriage to the daughter and her family.

Footnote 3:One of the witnesses who swore that the decedent was competent to make his will, also signed a statement that the decedent "was not of sound mind" when he got married. This obviously contradictory statement is not credited by the court and the court ascribes little weight to these opinions of non-professionals regarding the father's competence to get married. The opinions are not based on contemporaneous observations and would be clearly inadmissible at trial. The only "friend" and non-family member who was present at the time of the marriage (and presumably could describe decedent's condition on that day) gave contradictory statements regarding the decedent's competence.

Footnote 4:As part of the relief, the daughter seeks access to these records.

Footnote 5:There is no suggestion that the statute of limitations has expired. NY DOM. REL. LAW §140(e).

Footnote 6:This court has not been asked to decide whether the wife has a right of election in Florida, where the decedent resided and his estate is bring probated and offers no opinion on that question. The court also declines to opine whether a judgment annulling the marriage under New York law would defeat the wife's right of election in Florida.

Footnote 7:The "800-pound gorilla" is an aphorism which arises from the following riddle: Where does an 800 lb. gorilla sleep?" The answer: "Anywhere it wants to." The phrase connotes a decisive force in any controversy.

Footnote 8:The court takes judicial notice that the Hon. David T. Corretore, the justice of the peace who oversaw the marriage is a member of the New York bar as is Irving Pheterson, who oversaw the execution of the codicil.