APPEAL by the defendant Nidia Colon Thomas, in an action, inter alia, for a judgment declaring that the marriage between Howard Nolan Thomas and her is null and void, from an order of the Supreme Court (Andrew P. O'Rourke, J.), dated January 31, 2008, and entered in Putnam County, which denied her motion to modify or vacate an order of the same court dated June 21, 2007, which upon remittitur from this Court (see Campbell v Thomas, 36 AD3d 576), among other things, in effect, directed the entry of judgment (a) in favor of the Estate of Howard Nolan Thomas and against her in the sum of $101,997, and (b) declaring that she "shall have no legal rights and can claim no legal interest as a spouse of Howard N. Thomas."
The opinion of the court was delivered by: Prudenti, P.J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., HOWARD MILLER, CHERYL E. CHAMBERS and SHERI S. ROMAN, JJ.
Elder abuse, including the financial exploitation of elderly individuals who have become mentally incapacitated, is an "often well hidden problem" (Bailly, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.14, 2010 Pocket Part, at 36), in part because the perpetrator of such conduct is in many cases a member of the victim's family *fn1. With "the demographics promis[ing] a greater percentage of older Americans in the next thirty years" (Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677[U], *5 [Sup Ct New York County]), this problem has begun to receive increasing attention*fn2. New York, however, does not yet have a statute specifically addressing a situation in which a person takes unfair advantage of an individual who clearly lacks the capacity to enter into a marriage by secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the parties is incapable of consenting due to mental incapacity is not annulled until after the death of the non-consenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent's estate, without regard to whether the marital relationship itself came about through an exercise of overreaching or undue influence by the surviving party. On this appeal, we have occasion to consider whether the surviving party may nonetheless be denied the right of election, based on the equitable principle that a court will not permit a party to profit from his or her own wrongdoing.
In early 2000 Howard Nolan Thomas was diagnosed with terminal prostate cancer and severe dementia, which was apparently attributable to Alzheimer's disease. In February 2001 Nancy Thomas, Howard's daughter and primary caretaker, went away on a one-week vacation, and left Howard, who was then 72 years old, in the care of the defendant Nidia Colon Thomas, who was then 58 years old. Nancy and two of Howard's other children, the plaintiffs Christopher Campbell and Keith Thomas, later learned that, during Nancy's vacation, Nidia had married Howard, and had subsequently transferred his assets into her name. Specifically, Nidia caused the ownership of an account at the defendant Citibank worth $150,000 to be changed from Howard individually to Nidia and Howard jointly, and caused herself to be named as the sole beneficiary of Howard's account with the defendant New York City Teachers' Retirement System (hereinafter TRS), valued at $147,000*fn3. Howard died in August 2001.
In November 2001 Christopher, Nancy,*fn4 and Keith commenced this action against Nidia in the Supreme Court, seeking, inter alia, a judgment declaring Nidia's marriage to Howard, as well as the changes to the bank account ownership and the TRS account beneficiaries, to be null and void. They contended that Howard lacked the legal capacity to enter into the marriage or execute the changes to his accounts due to his severe dementia, the effects of the medications he was taking at the time, and the progression of his cancer. The plaintiffs later amended their complaint to add causes of action alleging undue influence, conversion, and fraud.
Meanwhile, in November 2001, Christopher filed a petition for probate and letters of administration CTA in the Surrogate's Court. In December 2002 Howard's will, which was dated March 24, 1976, and provided that if his first wife predeceased him, his estate was to be divided equally among his children, was admitted to probate. In January 2003 Christopher was issued letters of administration CTA. In May 2003 Nidia filed a right of election, which Christopher challenged. Since the Surrogate's Court and the parties agreed that the determination of the right-of-election issue would depend upon the outcome of the dispute in the Supreme Court as to the validity of Nidia's marriage to Howard, the Surrogate's Court stayed the proceedings before it, pending the resolution of the action in the Supreme Court.
In the Supreme Court, the plaintiffs moved for summary judgment, in effect, on their causes of action seeking a judgment declaring the marriage and the changes to the bank account ownership and the TRS account beneficiaries to be null and void. They submitted, inter alia, affidavits from Christopher, Nancy, and Nancy's son Peter, all of whom attested to the deterioration of Howard's mental condition.
According to Nancy, during the last three years of Howard's life, his dementia had caused him to become "paranoid, extremely forgetful, and prone to temper outbursts." As she explained it, he "experienc[ed] great confusion as to who various individuals were," and called almost all females "Nancy." Nancy asserted that, when she took Howard out of the house, he required constant monitoring, since he tended to "wander off or just remain standing in one spot with a fixed stare." As recounted by Nancy, during two different hospital stays, Howard could not feed himself, was "combative and aggressive," had to be sedated and restrained, and "would pull out his IV tubes and catheter." In her affidavit, Nancy explained that, late in 2000, Howard's primary care physician advised her that "there was nothing more that could be done for [Howard,] and it was simply a matter of time until the [prostate cancer] took its course." Nancy stated that she then conveyed this information to Nidia. According to Nancy, when Nancy found out about the marriage in March 2001 and confronted Howard about it, Howard had no awareness of the marriage, and adamantly denied that it had occurred, stating: "What are you talking about? . . . I'm not married . . . Are you crazy?" Nancy further asserted that Howard kept his will in a safe at his home, and had shown her the will in the fall of 2000, but that when Howard died, Nidia claimed that she was unable to locate the will, despite having looked in the safe. The will, however, was later produced by Nidia's attorney.
Peter averred that, despite having a close and loving bond with his grandfather throughout his childhood, he began to notice bizarre behavior on Howard's part in 1999. During his hospitalization, Howard became "belligerent and aggressive" and "threatened to kill [Peter]," and then failed to recall behaving in that manner when confronted with it later. Peter stated that, beginning in 2000, Howard "required constant supervision," and "would soil himself," requiring Nancy or Peter to clean him, "because he had lost the ability to understand that he needed to be clean." As Peter recalled, on one occasion in 2000, Howard walked out of Nancy's house, where he was living temporarily, and was found several blocks away in a confused state of mind. As further recounted by Peter, after Howard "ran away" on one or more additional occasions, Nancy decided that Howard should move back into his own home, where she would continue to care for him, with the assistance of others, including Nidia.
In addition to describing Howard's diminished mental abilities, Christopher alleged in his affidavit that, approximately one month prior to Howard's death, Nidia sold a portion of a parcel of land owned by Howard for the sum of $90,000, and deposited the proceeds of the sale into the now-joint Citibank account. As of the date of Christopher's affidavit, the balance of the Citibank account was 54 cents.
The plaintiffs also submitted medical records as well as affidavits, one from Howard's primary care physician, who treated him for the last 13 years of his life, and one from a neurologist. Both physicians, who examined Howard in the fall of 2000, confirmed that he suffered from "severe dementia" and asserted that his condition made it inadvisable for him to be left unsupervised, "even for a minute." Both physicians recommended that Howard be placed in a nursing home, and they both would have supported an application for the appointment of a legal guardian for Howard. As explained by the physicians, and corroborated by the medical records, Howard was taking numerous prescribed medications, including psychotropic medication. As one of the physicians described it, ...