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Matter of D’Elia, NYLJ, June 4, 2007, at 29, col 3

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 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.

To Be Cont….

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