Matter of Kemper

[*1] Matter of Kemper 2017 NY Slip Op 51577(U) Decided on October 30, 2017 Surrogate's Court, Nassau County Reilly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2017
Surrogate's Court, Nassau County

In the Matter of the Administration Proceeding, Estate of Gary R. Kemper, a/k/a GARY KEMPER, Deceased.



2016-387627



Ruskin, Moscou Faltischek, P.C.

Attorneys for Petitioner, Lynn Dilucchio

East Tower, 15th Floor

1425 RXR Plaza

Uniondale, New York 11556

Novick & Associates, P.C.

202 E. Main Street, Suite 208

Huntington, New York 11743
Margaret C. Reilly, J.

The following papers were considered in the preparation of this decision:

Notice of Motion in Limine, Affirmation and Exhibits 1

Affirmation in Opposition 2

Brief on Texas Common Law and Exhibits 3

Reply Affirmation 4

Before the court is a motion brought by the petitioner, sister of the decedent and temporary administrator of the estate, Lynn DiLucchio ("petitioner") seeking an order in limine: (1) excluding from evidence any expert testimony concerning: (i) the statutory and/or common law of Texas, as it pertains to Texas family law and common law marriage; and (ii) how the statutory and/or common law of Texas applies to the facts of decedent's relationship with respondent; and (2) such other and further relief as may be just and proper. Respondent, Patricia O' Connell, decedent's girlfriend/fiancé ("respondent") opposes. Respondent argues that petitioner's position is contrary to the function of a motion in limine in that respondent states such a motion should determine whether or not certain evidence can be referred to at trial. Respondent contends that unless the court finds that evidence inadmissible that it should be considered relevant and probative and therefore admissible. Respondent further submits that the testimony of the Texas attorney will aid the court in determining whether a common law marriage was created. In reply the petitioner argues that the expert testimony is "inadmissible, immaterial, and prejudicial, and therefore should be precluded... and not significant or essential to the determination of the respondent's claim." Both parties agree that the court should take [*2]judicial notice of Texas law and that New York recognizes common law marriage formed in another state.

Gary Kemper the decedent died intestate on October 27, 2014. He was survived by his mother and the petitioner. After the petitioner filed for appointment as administrator of the estate respondent filed an answer claiming priority to receive letters. Petitioner then filed for temporary letters of administration. The court granted the opposed petition of the petitioner, the decedent's sister, with the consent of the decedent's mother, to the issuance to her of letters of temporary administration. Temporary letters were issued to the petitioner and discovery commenced. The respondent claims that she is the surviving common law spouse of the decedent. The instant motion relates to the respondent's Expert Witness Disclosure which identifies Katherine A. Kinser, Esq., a Texas attorney that she seeks to have testify at trial with respect to Texas Family Law, specifically common law marriage.

Both parties agree that Texas recognizes common law marriage and it is codified in Tex Fam Code Ann § 2.40(a). "New York does not itself recognize common-law marriages, [however] a common-law marriage contracted in a sister State will be recognized as valid here if it is valid where contracted (internal citations omitted). The law to be applied in determining the validity of such an out-of-state marriage is the law of the State in which the marriage occurred" (Mott v Duncan Petroleum Transp., 51 NY2d 289 [1980] citing Matter of Watts, 31 NY2d 491[1973]; Farber v US Trucking Corp., 26 NY2d 44, 47 [1970]). It is not contested that the court should take judicial notice of the Texas law pursuant to CPLR §4511(a) which states in pertinent part, "[e]very court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state..." Accordingly, judicial notice is taken that Tex Fam Code Ann § 2.401(a)[FN1] states the following:

Proof of Informal Marriage. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:(1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

Petitioner submits that the language in the Texas Code is plain and unambiguous and it is unnecessary for a Texas attorney to interpret the statute for this court.

The Court has authority to grant a motion in limine to exclude evidence in advance of trial (PCK Development Co. v. Assessor of Town of Ulster, 43 AD3d 539 [3rd Dept. 2007]). "To be properly admitted, expert opinion must generally be based upon facts either found in the record, personally known to the witness, derived from a professionally reliable source or from a witness subject to cross-examination" (McAuliffe v, McAuliffe, 70 AD3d 1129, 1132 [3rd Dept. 2010]). Expert testimony is admissible when it helps "to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (DeLong v. County of Erie, 60 NY2d 296 [1983]). Finally, "[t]he admissibility and scope of expert testimony is a determination committed to the sound discretion of the trial court" (Mariano v. Schuylerville Cent. Sch. Dist., 309 AD2d 1116, 1117 [3rd Dept. 2003]).

The court in taking judicial notice of the relevant Texas Code and that New York recognizes common law marriages formed in another state, has concluded that expert testimony relating to same is not necessary. Accordingly, the expert testimony is excluded and the petitioner's motion is GRANTED.

This constitutes the decision and order of the court.

Dated: October 30, 2017

Mineola, New York

E N T E R:

___________________________

HON. MARGARET C. REILLY

Judge of the Surrogate's Court Footnotes

Footnote 1:Respondent cites to §2.410(a) which the court believes is a typographical error for purposes of making the ruling that the section of the law is not in dispute.