Matter of Espinal
Annotate this CaseDecided on August 14, 2012
Sur Ct, Bronx County
Estate of Felix Espinal, Deceased
41-A-2002/A
Paul Bleifer & Associates, (Paul Bleifer, Esq., of Counsel) for Maritza Espinal, movant
Elliot Ifraimoff & Associates, PC, (Julio Cesar Roman, Esq., of Counsel) for Pedro Espinal, objectant
Lee L. Holzman, J.
In this proceeding to compromise causes of action arising from the decedent's death and to judicially account for the settlement proceeds, the decedent's alleged surviving spouse who is a co-administrator of this estate moves for summary judgment dismissing the objections to her account filed by the other co-administrator, the decedent's brother. The movant alleges in her petition and account that the entire recovery should be allocated to wrongful death and paid to her as the decedent's spouse and sole distributee. The objectant alleges that as the decedent and the movant were divorced at the time of the decedent's death, and, in any event, the movant is disqualified on the grounds of abandonment (see EPTL 5-1.2 [a] [5]; EPTL 5-4.4 [a] [2]), the decedent's distributees entitled to share in the wrongful death recovery are himself and the decedent's four other siblings.
The decedent died intestate on January 24, 2001, allegedly as a result of medical malpractice. Letters of administration originally issued to the objectant who represented that the movant and the decedent were divorced and listed an alleged daughter of the movant and the decedent as the sole distributee. After the movant sought to revoke the objectant's letters for failure to list her as a distributee in his administration petition, the parties stipulated: (1) that letters of administration would issue to them jointly; (2) the movant and the decedent entered into a valid ceremonial marriage; and, (3) the alleged daughter was not a distributee. Nonetheless, the objectant now contends that the decedent and movant were divorced at the time of the decedent's death.
The objections emanate from "official looking" documents found among the decedent's effects after his death in the apartment he allegedly shared with a long-time companion. Only one of such documents is translated into English and it purports to be an "Abstract of Decree" issued by the Clerk's Office, Central Board of Elections, Dominican Republic on July 4, 2001, but is not authenticated pursuant to CPLR 4542 (a). It states that the decedent and the movant were divorced on November 19, 1999. The objectant asserts that this document establishes that the movant and the decedent were divorced at the time of the decedent's death and the movant is not a distributee. He [*2]further alleges that, even if the movant is determined to be the decedent's surviving spouse, she is disqualified from sharing in the settlement proceeds because she abandoned the decedent and lived apart from him for many years prior to his death.
In support of her summary judgment motion, the movant alleges that she remained married to the decedent from December 30, 1986 until his death. She submits documents issued by "Lic. Ruiz, Officer of the Civil State, First Circumscription of Santiago" which, unlike the brother's document, are certified by the Vice Consul of the United States of America, Santo Domingo, Dominican Republic. These documents state that the brother's document is "totally false" as the numbered book of divorce registries identified therein does not exist, and a diligent search of the divorce files for the years 1999 through 2002 failed to reveal any record of divorce of the decedent and movant.
In opposition, the objectant alleges that the movant did not live with the decedent for over a decade prior to his death and submits the affidavit of the decedent's alleged companion stating that: (1) she lived with the decedent continuously since 1992 as "common law" husband and wife; (2) the movant did not live with the decedent since 1992 and abandoned him; (3) the decedent told her in1999 that he obtained a divorce from the movant; (4) the movant never visited the decedent or contacted him and did not attend his funeral; (5) the movant attended no events with the decedent and, in fact, would be hard pressed to find any pictures showing that she and the decedent were even in the same room together since 1992; and, (6) the decedent's rightful distributees are his siblings.
In reply, the movant notes that the decedent's death certificate, on which the objectant was the informant, states that the movant was the surviving spouse. She further states that she signed joint income tax returns with the decedent and annexes the decedent's hospital admission record dated the week prior to his death stating that he was married. She asserts that after she and the decedent married in the Dominican Republic, they came to the United States, lived with different relatives and finally moved into the movant's sister's home, where they resided as husband and wife until the decedent's death. The movant concedes that the decedent did not get along with his sister-in-law and started spending several nights a week away from the marital home; however, she notes that he kept personal effects and clothes at the marital apartment, and that they were trying to find an apartment for just the two of them. The movant also alleges that: (1) she attended gatherings with the decedent's family until Christmas, 2000; (2) she attended weekly softball games and family picnics with the decedent; (3) the decedent supported her until his death, paid rent to the movant's sister for their share of the apartment with the sister and the sister's family and additionally contributed $400 per month toward the household expenses; and, (4) the information for the movant's pecuniary loss was utilized by trial counsel in negotiating the instant settlement offer. The affidavit submitted by the movant's sister corroborates those contentions.
Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see [*3]Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).
Here, the unauthenticated document relied upon by the objectant to bolster his contention that the movant and the decedent were divorced cannot be given any weight, particularly in light of the movant's documents, certified by a United States embassy official pursuant to CPLR 4542 (b), certifying that: (1) a diligent search of the divorce files for the years 1999 through 2002 revealed no record that the decedent and movant divorced; (2) the purported 1999 divorce states that it is recorded in book 8 for the year 1999 but no such book exists because the last book recorded for 1999 is book 5; and, (3) the purported 1999 document is "totally false." The statement by the decedent's companion, that the decedent told her that he obtained a divorce from the movant in 1999, is hearsay and of no probative value. Moreover, the companion first filed an affidavit in support of the objectant's administration petition stating that the decedent's sole distributee is a daughter and now, in support of the objectant's position on this motion, states that the decedent's siblings are his distributees. As there is no valid documentary evidence demonstrating that a divorce occurred, the court finds that the decedent and the movant were not divorced.
To establish abandonment disqualifying the movant from sharing in the decedent's estate, the objectant has the burden of proof to show that the movant departed from the marital residence and lived separate and apart from the decedent with an intent not to return to the marital residence, without justification and without the decedent's consent (see EPTL 5-1.2 [a] [5]; Matter of Riefberg, 58 NY2d 134, 138 [1983]; Gerteis v Gerteis, 44 AD3d 709 [2007]). Here, notwithstanding that the companion's statement that the decedent exclusively lived with her for the last ten years of his life and had virtually no contact with the movant is refuted by both the movant and her sister relating to payments for rent and household expenses, as well as cohabitation, the companion's statement might very well suffice to create a triable issue of fact with respect to whether the movant and the decedent lived separate and apart for at least the last decade of the decedent's life. Nonetheless, the objectant did not offer any admissible probative proof to establish whether it was the decedent or the movant who departed the marital abode, and there is nothing in the record indicating that the movant's misconduct caused the decedent to leave the marital residence or that she consented to their living separate and apart. Although the objectant states that he needs further disclosure to support his contentions, this argument is not persuasive as he failed to provide any specifics with regard to the nature of the disclosure to be sought or the information that might be solicited therefrom.
As the objectant failed to raise any triable cause of fact by admissible proof in order to meet his burden of proof on the issue of abandonment with respect to departure, justification and consent, this decision constitutes the order of the court dismissing the objections in their entirety (see Matter of Riefberg, 58 NY2d at 134; Matter of Atiram, 83 AD3d 1055 [2011]; Matter of Gardner, 176 AD2d 142 [1991], appeal dismissed 72 NY2d 1124 [1991]).
Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, and the lack of any unpaid debts or claims presented herein, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action. Disbursements, and counsel fees pursuant to Judiciary Law § 474-a, are allowed in the sums requested by separate counsel. The sum of $3,187 is to be paid to Pedro Espinal in reimbursement [*4]of the decedent's funeral expenses. The net distributable proceeds are to be paid to the decedent's spouse.
Settle decree.
_____________________________
SURROGATE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
