Joseph Centner, (“Cross-Petitioner”), moved for an order staying or transferring to this Court a related partition action, Index No. 150775/2018, pending in Supreme Court, Richmond County and for a protective order barring his daughter Dena O’Connell, (“Petitioner”) from using excerpts from the prior divorce proceeding between decedent and Cross-Petitioner which was abated by decedent’s death. Petitioner opposes the motion citing the relevance of the prior divorce proceeding to prove her claim of abandonment by her father and the lack of a prevailing reason to transfer the pending partition action.Sharon Centner died intestate a resident of Richmond County on October 9, 2017. At issue herein is certain real property titled in decedent’s name located in Staten Island, New York, where Cross-Petitioner resides. Decedent’s alleged intestate heirs are four adult children and her husband, Cross-Petitioner.Petitioner filed for administration on October 24, 2017, alleging that the Cross-Petitioner was disqualified from receiving his intestate share on the grounds of abandonment of decedent, and filed the partition action in Supreme Court. Limited Letters of Temporary Administration were issued to Petitioner on October 31, 2017, which automatically expired six months thereafter.I. THE PROPER FORUM FOR THE PARTITION ACTIONCross-Petitioner moves to stay or transfer the pending partition action from Supreme Court to Surrogate’s Court. Surrogate’s Court has subject matter jurisdiction “over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto.” NY Const, art VI, §12 [d]. Under the codification of this jurisdiction in the Surrogate’s Court Procedure Act, this Court’s subject matter jurisdiction may extend to an action for partition. Matter of Piccione, 57 N.Y.2d 278 (1982).However, a partition action contains certain other procedural requirements, inter alia, joining all creditors to the action and adjudicating the lien in the form of an interlocutory judgment. Matter of Glyn, 59 Misc.3d 1020 (Queens Co. Sur. Ct. 2018); RPAPL §§904[2], 913, 929 and 962.A partition sale of the subject property is inevitable and the action is already proceeding forward in Supreme Court. An expeditious administration of the estate will be served by allowing the action to proceed in Supreme Court, where all liens can be determined and satisfied or eliminated. Matter of Glyn, 59 Misc.3d 1020 (Queens Co. Sur. Ct. 2018). Once sold, the proceeds of the sale will be distributed according the parties’ status as determined by this Court.Accordingly, this portion of Cross-Petitioner’s motion is denied.II. THE DISCOVERABILITY OF THE PRIOR DIVORCE PROCEEDINGPetitioner seeks to use the court file and testimony from the divorce proceeding to disqualify decedent’s spouse from his share of the estate under EPTL §5-1.2. Specifically, Petitioner seeks to show that the decedent’s husband failed to support the decedent during their marriage and divorce proceedings, concealed assets from the decedent, and delayed the divorce proceedings during decedent’s terminal cancer treatment to prevent the court from granting a divorce during decedent’s lifetime. Annexed to her opposition, Petitioner has presented excerpts from the matrimonial proceeding, which she represented were provided by decedent prior to her death. These excerpts include decisions from the court made during the pendency of the divorce proceeding, which at the time of a hearing, may be relevant and admissible evidence regarding Cross-Petitioner’s status.Under CPLR 3101(a) “full disclosure of all matter material and necessary in the prosecution or defense of an action” is authorized. This statute is liberally applied and includes all discovery that is considered relevant. Allen v. Crowell-Collier Publishing Co., 21 N.Y. 2d 403 (1968).This Court must hear evidence as if it were deciding a separation based upon abandonment in order to determine whether the surviving spouse has abandoned the decedent so as to be disqualified as a distributee. Matter of LaPenna, 165 A.D. 2d 655 (2d Dept. 1962); Matter of Ruff, 91 A.D. 2d 814 (3d. Dept. 1982) In Matter of Ruff, the 3rd Department held that “[t]he issues raised in such a determination are difficult enough to resolve between living spouses, but almost impossible to objectively establish where […] the testate partner is dead and the survivor is in most respects incompetent to testify to “transactions” involving the decedent (CPLR 4519).” Id. at 814. The burden of proof is further complicated since it is placed squarely on the party alleging the abandonment. Id. citing Matter of Rechtschaffen, 278 N.Y. 336, 338 (1938) (holding that the lower Surrogate’s Court was wrong in striking portions of the Domestic Relations Court filed since “proof of the judgments of the Domestic Relations Court and the Magistrate’s Court that respondent was a disorderly person is prima facie evidence in the present proceeding that he neglected to provide for his wife according to his means.”)The privacy protections afforded under Domestic Relations Law §235 prohibit public inspection of pleadings and testimony in a divorce proceeding. However, those protections do not extend where the party requesting disclosure of the divorce proceeding can “articulate and particularize the relevance of information sought to an important pending matter.” Matter of Rechtschaffen, 278 N.Y. 336, 338 (1938); Matter of Madsen v. Westchester County Clerk, 43 Misc. 3d 1217 (A) (Sup. Ct. Westchester County 2014); Janecka v. Casey, 121 A.D. 2d 28, 30 (1st Dept. 1986); see also K.R. v. Clerk of New York County, 2017 Slip Op. 31789 (Sup. Ct. 2017); People v. Malaty, 4 Misc. 3d 525 (Sup. Ct. Kings Co. 2004) (holding that the prosecution could obtain copies of defendant’s matrimonial file where such evidence was significant and relevant to defendant’s asserted defense). In Janecka, matrimonial records were unsealed where the decedent had committed suicide and her plaintiff husband sought to recover in malpractice and wrongful death against her physician and hospital. The defendants sought the matrimonial records to show that the deceased was living in a hostile home environment which may have contributed to her emotional state and suicide.Cross-Petitioner argues that Petitioner’s limited letters of administration have expired, as such, she is unable to waive the privilege. Under Rechtschaffen and Janecka, supra, the relevance of the request to disclose the prior divorce proceeding was paramount, the fiduciary status of the requesting party was not. In Rechtschaffen, the appellant seeking admissibility of the file was the decedent’s nephew and in Janecka, the party seeking the discovery were the defendants in a medical malpractice action.It would be inequitable that Cross-Petitioner could use the information from the prior divorce proceeding by waiving the DRL §235 protection in his favor if he chose, yet, the Petitioner would be unable to use such information to provide the Surrogate evidence for the ultimate determination on intestate distribution.To further this finding, consider Matter of Perricelli, 36 Misc.3d 418,(Surr. Ct. West. Co. 2012), where an objectant filed a motion to revoke and suspend an administrator/husband on the basis of abandonment, and the administrator spouse submitted the pleadings from the divorce action in his defense. The Westchester County Surrogate wrote that:the defense of justification to a claim of abandonment requires a showing of misconduct or fault of the “abandoned” spouse, it would be inconsistent, if not contradictory, to allow one who has sought a divorce under the “no fault” law to rely upon the pleadings from the divorce action — in which he/she has made a sworn statement to the effect that neither party was at fault for the irretrievable breakdown of the marriage — to establish that he/she was justified in leaving the marital residence due to some misconduct or fault of the other spouse. This is all the more apparent when one considers that one often-mentioned justification for enactment of the no fault divorce law was to eliminate the necessity of one or both spouses perjuring themselves in a divorce action in order to provide grounds for divorce. It would be supremely ironic to allow a spouse, who, by seeking a divorce under the no fault statute, has implicitly represented under oath that neither party was at fault for the irretrievable breakdown of the marriage, to later claim that his/her departure from the marital residence was justified by the misconduct or fault of the other spouse because a change of circumstances (i.e., the death of the other spouse) renders it financially beneficial for him/her to do so.Id. at 425.Such is the case herein, Cross-Petitioner contends that he “offered and attempted to obtain guardianship for [decedent] in order to better provide and care for her during her final illness.” Supplemental Reply Affidavit 5. He further asserts that it was decedent who moved out of the marital residence, that he voluntarily supported decedent monetarily, provided decedent health insurance and did not abandon decedent. As such, as in Perricelli, it would seem contradictory and unjust not to allow discovery and possible admissibility of the divorce proceeding as evidence for or against these claims and defenses.Therefore, the prior divorce proceeding is significant to the legal status of Cross-Petitioner, whether Cross-Petitioner supported his spouse prior to her death so as to remain an intestate distributee. The mandates of the CPLR and the SCPA require a hearing on this issue, and the Court is entitled to be provided with all relevant evidence to make that determination.Since the material is significant and relevant to this proceeding, specifically the hearing regarding Petitioner’s allegations concerning Cross-Petitioner, the shield established by DRL §235 yields and a protective order will not issue.III. CONCLUSIONIt is then herebyORDERED, that the motion of Cross-Petitioner is denied in all respects, and all parties shall appear for a conference on April 17, 2019 at 11:00 a.m. for a conference to set a discovery schedule and hearing date; and it is furtherORDERED, that the partition action, Index No. 150775/2018, pending in Supreme Court, Richmond County, will not be transferred to this Court, however, any distribution of the proceeds will be decided by this Court.Dated: March 23, 2019
