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What is the starkest different between no-fault and domestic relations law?



Campbell v Thomas, 2010 NY Slip Op 02082 (2d Dept.2010)(Prudenti, P.J.)

For those of you who have been involved with elder abuse in some fashion, this case reads like a screen play of some of the horrors that bestow some of our most vulnerable seniors.  But there is a real no-fault link in this one.  Since this is a long opinion, I will summarize this for you.

Mr. Thomas, a 72 year old man, suffered from Alzheimers, Dementia and Terminal Prostate Cancer.  His care taker, Ms. Colon, 14 years his junior, decided to marry him.  Mr. Thomas had no idea what was happening or that he married this woman.  She filed papers to have numerous accounts – separate property – of Mr. Thomas placed into joint accounts with the right of survivorship.   In New York, joint accounts opened by two spouses are presumed to be held as a joint tenancy with right of survivorship, unless specifically stated to the contrary.  This is a minority rule.

Mr. Thomas dies.  Ms. Colon demands the monies from which a joint tenancy was formed and demands a spousal election, pursuant the EPTL.

You can read the sordid facts of all of this in the opinion.  What is important to know is that an action was commenced to annul this marriage based upon fraud and other theories since the marriage was voidable.  The Supreme Court found the marriage to be fraudulent and annuled it.  However, a voidable marriage will not prevent a spousal election upon death, if the annulment is made after the death of the spouse.

Therefore, Ms. Colon, although found to have acted fraudulently, deceitfully and maybe criminally, made a claim to the assets she attempted to obtain through her artifice.  Supreme Court, based upon its equity jurisdiction, denied her claim notwithstanding a statute to the contrary.  Ms. Colon appeals, and the decision of Supreme Court is affirmed in pertinent part.  It was modified as to a collateral and inconsequential issue.

The Court observed the following:

“[T]he Supreme Court, being a court of equity as well as law (see NY Const art VI, § 7[a]; McCain v Koch, 70 NY2d 109, 116), was empowered to grant relief consistent with the equitable principle that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (Riggs v Palmer, 115 NY 506, 511; see Matter of Covert, 97 NY2d 68, 74; Matter of Lonergan, 63 NYS2d 307; see also Barker v Kallash, 63 NY2d 19, 25; Carr v Hoy, 2 NY2d 185, 187). Pursuant to this doctrine, which has been applied in both civil and criminal cases, the wrongdoer is deemed to have forfeited the benefit that would flow from his or her wrongdoing (see Giles v California,US, 128 S Ct 2678, 2683 [discussing common-law doctrine of “forfeiture by wrongdoing,” under which a criminal defendant forfeits the right to confront witnesses by engaging in conduct designed to prevent a witness from testifying]; Diaz v United States, 223 US 442, 458, quoting Falk v United States, 15 App DC 446, 460 [” The question is one of broad public policy. . . . Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong’”]; New York Mut. Life Ins. Co. v Armstrong, 117 US 591, 600 [person who purchased life insurance policy “forfeited all rights under it when, to secure its immediate payment, he murdered the assured”] [quoted in Riggs v Palmer, 115 NY at 512]; People v Sanchez, 65 NY2d 436 [criminal defendant who deliberately leaves courtroom during trial forfeits the right to be present at [*8]trial]; Matter of Coty, Inc. v Anchor Const. Inc., 2003 NY Slip Op 50013[U], *11 [Sup Ct New York County 2003], affd 7 AD3d 438 [“for example, if one party destroys evidence, wrongfully resists disclosure, intentionally absents itself, or prevents a witness from testifying, it cannot profit from its own misconduct”]).

This “fundamental equitable principle” (Simon & Schuster, Inc. v Members of N.Y. State Crime Victims Bd., 502 US 105, 119, quoting Matter of Children of Bedford v Petromelis, 77 NY2d 713, 727) has been invoked to deny an individual who murders a family member the right to inherit from the victim of the murder (see Riggs v Palmer, 115 NY at 513), the right to succeed to the survivorship interest he would have otherwise had as a joint tenant of the victim (see Matter of Covert, 97 NY2d at 76), and the right to an elective share of the victim’s estate (see Matter of Lonergan, 63 NYS2d 307, 308). The rule, however, is not limited to murderers, and has been employed under a variety of circumstances, for example, to prevent a party from enforcing an illegal contract (see Stone v Freeman, 298 NY 268), to preclude recovery in tort by a plaintiff whose injuries directly resulted from his or her serious violation of the law (see Manning v Brown, 91 NY2d 116), to deny a wife’s request to redate a judgment of divorce terminating her husband’s prior marriage where the wife knew that her own marriage to the husband was bigamous (see Martin v Martin, 205 AD2d 506), and to find that a landowner’s commencement of construction of a shopping center did not create a vested right to the issuance of building permits, where the landowner knowingly performed the work in violation of a restrictive covenant (see Matter of G. M. Land Corp. v Foley, 20 AD2d 645).

We find this result to be compelled not only by the need to protect vulnerable incapacitated individuals and their rightful heirs from overreaching and undue influence, but to protect the integrity of the courts themselves. It is “an old, old principle” that a court, “even in the absence of express statutory warrant,” must not ” allow itself to be made the instrument of wrong, no less on account of its detestation of every thing conducive to wrong than on account of that regard which it should entertain for its own character and dignity’” (Matter of Hogan v Supreme Ct. of State of N.Y., 295 NY 92, 96, quoting Baldwin v City of New York, 42 Barb 549, 550, affd 45 Barb 359; cf. Carr v Hoy, 2 NY2d at 187, quoting Stone v Freeman, 298 NY at 271 [“a party to an illegal contract cannot ask a court of law to help him carry out his illegal object” because ” no court should be required to serve as paymaster of the wages of crime’”]). In this case, the record reveals that Nidia secretly entered into a marriage with a person whom she knew to be incapable of consenting to marriage, with the intent to collect, as a surviving spouse, a portion of his estate. A crucial step in the completion of that plan was Nidia’s assertion of a right of election in the Surrogate’s Court. Of course, the powers of the judiciary are not unlimited, and courts are not capable of righting or preventing every wrong. The courts, however, can, and must, prevent themselves and their processes from being affirmatively employed in the execution of a wrongful scheme.

The equitable doctrine pursuant to which we find that Nidia has forfeited her right of election does not displace legislative authority, but complements it. Our decision does not reflect an effort to avoid a result intended by the Legislature. Rather, for the following reasons, it is clear to us that the Legislature did not contemplate the circumstances presented by this case when it enacted EPTL 5-1.2.

Here is the no-fault link.  How come a statute that compels a fraud to be recompensed may be ignored for equitable reasons in the realm of Domestic Relations Law, yet a similar type of statute in the realm of no-fault litigation may not be ignored for equitable reasons?

In Fair Price v. Travelers, 10 NY3d 556 (2008)(Reid, J.), the Court of Appeals held that as long as there is coverage for the loss, the proponent of a no-fault action must be compensated for the fraud, if it is not timely or properly denied in accordance with Ins Law 5106(a) and 65-3.8.

As observed above, Fair Price is belied by centuries of case law, and as seen in Campbell, a fraud that goes to the heart of the matter must not be rewarded, and the courts will employ the tools necessary to reach that equitable result.

In other words, how come the Court of Appeals did not hold in Fair Price that even though there was coverage, the limited equity jurisdiction that even the Civil Courts have must trump 5106(a), since “[t]he courts, however, can, and must, prevent themselves and their processes from being affirmatively employed in the execution of a wrongful scheme.”?

Something to think about.

New update – well not new.  For some reason I thought Presiding Justice Prudenti issued a signed opinion, when the Appellate Division In Fair Price affirmed the Appellate Term’s decision, which the Court of Appeals affirmed.  My suspicions proved true.  Fair Price v. Travelers, 42 Ad3d 277 (2d Dept. 2007)(Prudenti, P.J.), aff, 10 NY3d 556 (2008)(Reid, J.).

Here is now my second question: Does equity call for a different result when it is an insurance carrier that has been defrauded and tricked by a scheme, ruse or artifice, as opposed to other individuals, corporations or entities?  It looks as if the Presiding Justice at the Appellate Division may believe it does.  Or perhaps, and i hate to say this, but was this specific issue in Fair Price not preserved or forcefully argued?