Matter of Cheek

[*1] Matter of Cheek 2012 NY Slip Op 50736(U) Decided on May 1, 2012 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2012
Sur Ct, Bronx County

Estate of Isaac Cheek, Deceased



2008-2589



Michael M. Lippman, Esq., for Hattie Harris, petitioner

Edward F. Fordham, Esq., for Helen Cheek, respondent

Lee L. Holzman, J.

In this proceeding the decedent's sister seeks to vacate a stipulation entered into on the record in open court with the decedent's alleged spouse, alleging, inter alia, there was a mutual mistake of fact as to whether, in fact, the decedent and the spouse were married. The respondent, the alleged spouse, opposes the application, and requests an order restraining the sister from harassing her and directing the sister to pay her attorney's fees.

The decedent's sister, as an alleged creditor of this estate, originally sought the issuance of letters of administration to the Public Administrator or to herself; however, after several conferences with the court, her claim against the estate was settled pursuant to the terms of a stipulation entered into on the record in open court. A decision dated April 3, 2009, which constituted the order of the court, dismissed her petition subject to the terms of the parties' stipulation (see Matter of Cheek, NYLJ, April 9, 2009, at 43, col 1).

The sister subsequently commenced this proceeding seeking to vacate the stipulation settling her claim and, after the spouse opposed the application, the parties agreed to submit all issues for determination based on the pleadings and attachments without a hearing, effectively treating the submissions as a motion and cross motion for summary judgment.

The decedent died on March 4, 2008 survived by the spouse, who claims to be his sole distributee. In her original petition, the sister alleged that she had entered into an agreement with the decedent whereby he agreed to pay her $40,000 in settlement of issues relating to the estate of their uncle which the decedent administered prior to his death. She alleged that the decedent never paid her the settlement amount owed, and instead transferred all of his assets to the respondent shortly before he died. It is undisputed that the decedent obtained a divorce from his first wife in Mexico on July 2, 1964, that the decedent and the respondent married in St. Albans, Queens, New York on October 3, 1964, and they held themselves out as husband and wife until the decedent's death.

In support of vacating the stipulation the sister alleges, inter alia, that she was in an extremely volatile and emotional state when she entered into the settlement agreement in March, 2009 as it was [*2]the one year anniversary of the decedent's death, and that shortly after she received the settlement check from the respondent, she directed her attorney to return it immediately. She asserts that the stipulation must be set aside as she subsequently discovered that the decedent and the respondent were not in fact validly married. In support, she attaches a photocopy of the marriage license between the decedent and the respondent and contends that it demonstrates that, because the decedent's first New York marriage was terminated by a Mexican divorce in which the spouse did not appear, it was invalid and the subsequent marriage to the respondent is also invalid. Although the photocopy of the document supplied by the sister is far from crystal clear, it appears to leave blank the space for answering the question: "Did defendant appear in person in court or by attorney . . .?"

Based upon this photocopy of the license, the sister maintains that she entered into the stipulation believing the respondent and the decedent were married at the time of death and there was a mutual mistake of fact as to the validity of the decedent's divorce from his first wife warranting vacatur of the agreement. The sister argues that because the respondent is not the surviving spouse, either she is a distributee of his estate entitled to seek letters of administration to commence a discovery and turnover proceeding, or if the decedent's first wife is living, she would be the sole distributee with standing to challenge the respondent's status.

In opposition, the respondent provides an original certified copy of her marriage license which was issued by the New York City Clerk on September 23, 1964, as well as her marriage certificate. Unlike the photocopy provided by the sister, the original license states "Yes" in response to the question of whether the decedent's first spouse appeared in person or by an attorney in the divorce proceeding in Mexico. The respondent argues, inter alia, that the sister lacks standing to challenge the validity of her marriage and, even assuming that standing exists, the sister is not a distributee as the decedent's first spouse would be the distributee. In any event, she asserts there is no mutual mistake of fact, as she provided proof of her marriage to the decedent, and the sister provided no proof to the contrary. The respondent notes that both parties were represented by counsel when entering into the stipulation on the record in open court, and the settlement agreement is not ambiguous on its face. The respondent urges that the sister offered only conclusory allegations, and absent evidence to support the contention that the respondent is not the surviving spouse, the application must be denied and dismissed.

An original certificate of a marriage in New York generally, is prima facie evidence of the marriage (see CPLR 4526). Additionally, "[i]t is well established under New York law that a presumption exists, absent contrary evidence, that a second marriage is valid, and the burden of proving its invalidity is placed upon those who assert it" (see Matter of Gomez v Windows on the World, 23 AD3d 967 [2005]; Matter of Lymon, 151 AD2d 248 [1989]; Matter of Wachter, NYLJ, March 16, 1994, at 23, col 4). Moreover, the burden is even higher where, as here, the party challenging the validity of the marriage is a stranger to the marital relationship (see Matter of Esmond v Lyons Bar & Grill, 26 AD2d 884 [1966]; see also Matter of Seidel v Crown Industries, 132 AD2d 729 [1987]).

"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224 [1984]), particularly where, as here, the stipulation was entered on the record in open court, its terms are unambiguous, the parties were represented by counsel and the court "conducted a proper allocution of the petitioner and determined that she voluntarily and knowingly accepted the terms of the stipulation" (Matter of Siegel, 29 AD3d 914, 915 [2006]; see [*3]also Charlop v A.O. Smith Water Products, 64 AD3d 486 [2009]; Matter of Abu-Regiaba, NYLJ, Oct. 10, 2008, at 27, col 3). A stipulation of settlement entered into between parties that is "so ordered" by the court becomes a contract between the parties that can be set aside based only upon a showing of fraud, collusion, mistake, or other similar grounds (see Hallock v State of New York, 64 NY2d at 230; see also CPLR 5015 [a] [2], [3] [relief from judgment or order]).

As the certified copy of the marriage license provided by the respondent indicates that the decedent did in fact state that his first spouse appeared by an attorney in Mexico, it appears that the petitioner's whole basis for moving to set aside the stipulation is unfounded. Even assuming, arguendo, that the marriage license is not dispositive of this issue, the petitioner failed to offer any evidence to rebut the very strong presumption in favor of the validity of the respondent's marriage to the decedent. Furthermore, as the decedent, prior to his death, transferred property to the respondent, it was not even established that the respondent was relying upon her marital status when she agreed to pay a sum certain to the petitioner in full satisfaction of any claim that the petitioner had against the decedent or against the respondent as a result of the transferred property.

As the sister's conclusory assertion that there was a mutual mistake of fact with respect to any material aspect of the stipulation entered into on record lacks any basis in the record, this decision constitutes the order of the court dismissing the petition, with prejudice. Nonetheless, the court does not find that the petitioner engaged in frivolous litigation, and the respondent's request for affirmative relief against the petitioner is also denied.

SURROGATE