Matter of D'Elia
Annotate this CaseDecided on July 25, 2008
Sur Ct, Bronx County
In the Matter of the Estate of Daniel J. D'Elia, Deceased.
699-A/04
Arnold Davis, Esq, for Roxana D'Elia, petitioner.
The Dweck Law Firm, LLP. (H.P. Sean Dweck, Esq., of counsel) for Eileen D'Elia, objectant.
Lee L. Holzman, J.
In this proceeding for the issuance of letters of administration to the petitioner, the decedent's spouse, the objectant, the decedent's mother, alleges that the decedent died a domiciliary of the State of New Jersey, and his estate should be administered in that jurisdiction. This court previously denied the petitioner's motion for summary judgment, holding the issues of fact as to whether the decedent died a domiciliary of Bronx County or New Jersey should be tried first "because the court having jurisdiction over the estate should be the court that determines who is entitled to letters of administration under the laws of that jurisdiction" (Matter of D'Elia, NYLJ , June 4, 2007, at 29, col 3).
Thereafter, it appears that the parties engaged in further discovery and the following applications were presented: (1) the petitioner's motion for leave to renew her motion for summary judgment; (2) the objectant's cross-motion, inter alia, to strike the pleadings for failure to comply with discovery demands or to compel compliance with the demands; (3) the petitioner's motion to consolidate this proceeding with an action filed by the objectant in Supreme Court, Bronx County (Index No. 36098/07), seeking to annul the marriage between the petitioner and the decedent; and (4) the objectant's motion to subpoena immigration records. The court ruled from the bench on the return date of the application seeking immigration records that it would "so order" the subpoena. The court further advised the parties that aside from the petitioner's motion to renew her summary judgment motion, all of the other applications would be held in abeyance until the domicile issue is resolved.
It is undisputed that the decedent and the petitioner were married in New York on April 19, 2004, the decedent suffered injuries in an automobile accident on May 14, 2005, and the decedent commenced an action in connection therewith before he died of unrelated causes on April 13, 2006. In the underlying personal injury action the decedent was represented by the same law firm that represents the objectant in this proceeding.
Following this court's determination of the petitioner's motion for summary judgment, the petitioner served a demand for discovery and inspection on the objectant seeking: (1) the entire transcript of the decedent's deposition taken March 24, 2006 in connection with his personal [*2]injury action; and, (2) copies of all hospital and/or other institutional records relating to the care and treatment of the decedent following the May 14, 2005 automobile accident. Among documents provided pursuant to this demand were: (1) the entire transcript of the decedent's March 24, 2006 deposition and, in particular, pages nine through 16 of that transcript; (2) a HIPAA authorization executed on July 8, 2005 bearing the decedent's Bronx address; and, (3) a billing statement from a rehabilitation center sent to the decedent at his Bronx address.
The petitioner annexed pages one through eight of the same transcript to her original summary judgment motion, which were considered by the court. In the first eight pages of the transcript and in the pages thereafter produced by the objectant pursuant to the petitioner's discovery demand, the decedent testified, inter alia, that: (1) he moved to the Bronx address where the petitioner and her son were already living within a week or two after the marriage, and he lived there up to the date of the accident, a little more than a year; (2) he saw the petitioner the weekend prior to his deposition, and spent one or two nights with her in the Bronx in prior weeks; (3) following his hospitalization, he lived at the objectant's apartment in New Jersey because it had elevators, whereas his Bronx address had stairs, and because it was about one-half mile from the outpatient rehabilitation center; and, (4) when the petitioner's son completed school in June, he intended to move with her and her son to a new place that did not have stairs.
The petitioner contends that her motion for leave to renew should be granted because, at the time of her prior motion for summary judgment, she did not possess transcript pages nine through 16 of the decedent's deposition, the HIPAA form or the rehabilitation center billing statement. She also asserts that in view of the alleged new material, sanctions should be imposed on the objectant and the objectant's attorney for withholding the transcript and for submitting, in opposition to the summary judgment motion, alleged knowingly false affidavits to the effect that the decedent was domiciled in New Jersey at the time of his death.
In opposition to the motion to renew, the objectant annexes material submitted previously in opposition to the petitioner's motion for summary judgment and contends that: (1) the alleged new material was available at the time of the prior motion, and the petitioner fails to explain why she prematurely moved for summary judgment before discovery was concluded or why she could not obtain the alleged new material previously; (2) in any event, the alleged new material viewed in conjunction with the petitioner's deposition testimony does not controvert this court's finding that there is an issue of fact as to domicile and, due to evidence of a New Jersey domicile, sanctions are not warranted; and, (3) the petitioner's testimony at her deposition demonstrates that the decedent was domiciled in New Jersey, as he had moved his personal papers to his office, he had only two boxes and a small suitcase of his belongings remaining at the Bronx address when he died, and the petitioner admitted that the decedent was already residing primarily in New Jersey when he died and that she and her son intended to move into an apartment with the decedent in New Jersey after the son's school year finished.
The petitioner replies that: (1) by withholding the transcript pages and submitting false affidavits in opposition to the prior motion, the objectant and her attorney, in effect, seek to impeach their own witness, the decedent, who was the former client of the objectant's attorney in the personal injury action; (2) the objectant is not prejudiced by the renewal motion and has failed to controvert the timing of when the alleged new material was discovered; (3) the evidence demonstrates that the decedent had a temporary presence in New Jersey from the time of the [*3]accident to the time of his death, and although the decedent intended to move his family to New Jersey in the future, his domicile remained in the Bronx; and, (4) the objectant withheld evidence of the decedent's Bronx domicile at the time of the motion for summary judgment.
CPLR 2221(e) authorizes a motion for leave to renew based on "new facts not offered on the prior motion that would change the prior determination" provided there is "reasonable justification for the failure to present such facts on the prior motion." Generally, where a movant fails to meet either or both requirements, the motion for leave to renew is properly denied (see B.M.H. Mgt., Inc. v 81 & 3 of Watertown, Inc., 16 AD3d 1074 [2005]; Brown v Citibank, N.A., 5 AD3d 342 [2004]; Cuccia v City of New York, 306 AD2d 2 [2003]).
Nonetheless, courts have discretion to grant a motion to renew in the interest of justice even where all the requirements for renewal are not met (see Bank One v Mon Leang Mui, 38 AD3d 809 [2007]). Thus, "[t]he requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion" (Lawman v Gap, Inc., 38 AD3d 852 [2007], quoting Gadson v New York City Hous. Auth., 263 AD2d 464 [1999]), provided that "the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390 [2004]; Merchants Bank v Israel Discount Bank, 200 AD2d 540 [1994]). However, renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Hart v City of New York, 5 AD3d 438 [2004], lv denied 3 NY3d 601 [2004]; Matter of M. Kraus, Inc., 229 AD2d 347 [1996], appeal dismissed 89 NY2d 916 [1996]; Lau v Sullivan Co. District Attorney, 264 AD2d 912 [1999]).
Here, the petitioner annexed to the subject summary judgment motion, as well as to her prior motion for summary judgment, transcript pages one through eight of the decedent's March 24, 2006 deposition. Although the petitioner now claims that she lacked transcript pages nine through 16, as well as the HIPAA-compliant authorization and the rehabilitation center billing statement, she does not provide any reasonable justification for failing to obtain a complete copy of the transcript or of those documents at any time prior to her initial motion for summary judgment.
As a result, the branch of the petitioner's motion seeking leave to renew is denied (see Hart v City of New York, 5 AD3d at 438; Brown v Citibank, N.A., 5 AD3d at 342; Cuccia v City of New York, 306 AD2d at 2; Lau v Sullivan Co. District Attorney, 264 AD2d at 912; Matter of M. Kraus, Inc., 229 AD2d at 348). The absence of any reasonable justification by the petitioner for her failure to exercise due diligence in obtaining the alleged new material, and the portion of the decedent's testimony submitted on the prior motion indicating that he lived in New Jersey after the accident, warrant the denial of the branch of the petitioner's motion seeking to impose sanctions on the objectant and her attorney for submitting allegedly false affidavits (cf. 22 NYCRR 130-1.1[c][3]; Relleh Indus. Corp. v Tickler Sys., Inc., 290 AD2d 404 [2002]).
Even if the court considered the newly presented evidence, there remain factual issues that need to be resolved at a hearing before there can be a determination as to where the decedent was domiciled on the date of his death. After a hearing, the petitioner may prevail on the domicile issue for the reasons advanced by her; however, it is also conceivable that the proof adduced at a hearing might establish that, by the date of his death, the decedent had already [*4]established a domicile in New Jersey, where he was to be joined by the petitioner when her son finished school in June. Finally, and assuming, arguendo, that the marriage was a sham but the petitioner was nevertheless the surviving spouse for inheritance purposes under New York Law (see Bennett v Thomas, 38 AD2d 682 [1971]; Matter of Dominguez, 2002 WL 31844696), this does not necessarily preclude finding that the decedent died a domiciliary of New Jersey while the petitioner was domiciled in New York.
Accordingly, the petitioner's motion is denied in its entirety. The attorneys for both sides are to appear for a final pre-trial conference on September 8, 2008 at 9:30 a.m., in courtroom 406, at which time, a trial date on the domicile issue will be set.
This decision constitutes the order of the court and the Chief Clerk shall mail a copy of it to all counsel.
Proceed accordingly.
SURROGATE
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