In this estate, the administrator, the decedent’s sister, moves for an order pursuant to Domestic Relations Law §235 directing the County Clerk, New York County, as Clerk of the Supreme Court, New York County, to unseal the matrimonial records concerning an alleged prior marriage of the sister’s and decedent’s predeceased father, Arthur P. Wichman (“the father”), permit attorneys for the sister and an alleged niece and nephew of the decedent (“the claimants”) to copy pertinent portions of those records for the purpose of determining kinship, or, alternatively, transfer the file to this court for an in camera review. The motion is unopposed.The decedent died intestate on July 17, 2016. He was divorced, never had children and predeceased by his parents, Arthur P. and Freda Wichman. The decedent and the sister are the only children of that marriage. The sister, who was allegedly unaware that the father was previously married and had another son, initially filed an affidavit of heirship and a petition in the administration application listing herself as the decedent’s sole distributee. Thereafter, her former attorney was informed by counsel for the claimants that the father was previously married to Hilda J. Greenbaum and had another son, the claimants’ father, Arthur Wichman (“Junior”). In support of their kinship claims, the claimants consent to DNA testing and submit, inter alia, copies of the following: (1) 1930 and 1935 federal census records detailing a household consisting of Arthur and Hilda Wichman and a son also named Arthur; (2) “Junior’s” death certificate listing his daughter, a claimant, as the informant and a mother named Hilda but omits a father; (3) “Junior’s” birth certificate listing his parents as Arthur P. and Hilda Wichman (nee Greenbaum); (4) certificate of marriage of “Junior” to Cecile Schissler listing his father as “Arthur” and his mother as Hilda Greenbaum; (4) the claimants’ birth certificates listing their parents as Arthur and Cecile Wichman; and, (5) a certificate of disposition by the New York County Clerk dated December 15, 2016 stating that a judgment of divorce concerning Hilda Wichman, plaintiff and Arthur P. Wichman, defendant was filed and entered on July 22, 1940. The sister then amended the administration petition to include the claimants as distributees. After the claimants commenced a compulsory accounting proceeding, the sister changed attorneys and filed opposition denying that they are distributees and the instant motion seeking to examine the father’s divorce records.Domestic Relations Law §235 (1) provides, in pertinent part:“An officer of the court with whom the proceedings in a matrimonial action…or his clerk…shall not permit a copy of any of the pleadings, affidavits findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony…to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.”Domestic Relations Law §(5), which was added in 1979, provides, inter alia, that confidentiality accorded by Subdivision 1 expires 100 years after the date of filing and, thereafter, such records are fully subject to public inspection.In support of the application, the sister avers that her parents never mentioned that the father was previously married or had another son. Although the claimants offered to submit to DNA testing, the sister’s new attorney was advised by a renowned DNA testing company that DNA testing would not be productive, as their relationship to the decedent is too remote to determine consanguinity. The sister continues that she was “pressured” by her former attorney to add the claimants as distributees, despite having substantial misgivings that “Junior” is a half-brother. The sister notes that one of the claimants as informant failed to name “Junior’s” father on his death certificate and opines that, if the father were obligated to support “Junior” pursuant to a judgment of divorce or separation agreement, she and the decedent’s mother certainly would have been aware of the father’s prior marriage and that he had another son. Accordingly, the sister recants the inclusion of the claimants as distributees in the amended administration petition and seeks to examine the records of the father’s divorce proceeding in order to ascertain if “Junior” is listed as his son therein or whether paternity is disputed. She urges that the father and his prior spouse, as well as “Junior”, are long deceased, the claimants do not oppose the application, and no one will be harmed by the relief sought. The sister concludes that the foregoing gives rise to special circumstances warranting the unsealing of the father’s matrimonial file and, if Junior is determined to be a son of Arthur P. Wichman in the supreme court proceeding, she will recognize the claimants as the decedent’s distributees and account to them either formally or informally.Requests for access to sealed records are generally denied. Before a court may order production of information detailed in a matrimonial action, the court must be convinced that the intrusion into essentially private matters is warranted and that special circumstances are demonstrated (see Domestic Relations Law §235 [1]; Madsen v. Westchester County Clerk, 43 Misc 3d 1217 [A], 2014 NY Slip Op 50675 [U] [Sup Ct, Westchester County 2014]; Rubino v. Albany Med. Center Hosp., 126 Misc 2d 204 [Sup Ct, Albany County 1984]). On this state of the record, that no father is listed on Junior’s death certificate, the certificate of disposition of the father’s matrimonial proceeding does not disclose Junior’s status, the litigants in the father’s matrimonial action and Junior are deceased, the claimants do not oppose the application and one hundred years have not elapsed since the entry of the father’s judgment of divorce (see Domestic Relations Law §235 [5]), the application is granted to the extent that the court will conduct an in camera inspection of the father’s matrimonial file limited to ascertaining whether “Junior” is depicted as a son of the father therein (see Solomon v. Meyer, 103 AD3d 1025 [3rd Dept 2013]).Accordingly, this decision constitutes the order of the court directing the County Clerk, New York County, to unseal the file captioned “Hilda Wichman, Plaintiff, v. Arthur P. Wichman, Defendant (Index No. 1092-1940) and deliver it to the Clerk of this Court, Room 307, for an in camera review.The Chief Clerk shall mail a copy of this decision and order to counsel for the parties and the New York County Clerk.Proceed accordingly.
