By way of Order to Show Cause dated 10/18/06, as amended 11/21/06, and accompanied by the requisite Notice of Petition, petitioner Carmen R. brought on the instant proceeding under MHL §81 to have a Guardian appointed to manage the personal needs as well as the property of her mother, the Alleged Incapacitated Person, A.S. Per Order of this Court dated 12/22/06, petitioner Carmen R. was appointed Temporary Personal Needs Guardian of her mother, A. S., nunc pro tunc to 10/18/06, with various enumerated powers, inclusive of, inter alia, the power to prosecute an action to annul a marriage and/or have said marriage declared void. On 12/19/06 as well as 1/17/07 and 1/18/07, the Court conducted a hearing on petitioner's application to annul the marriage of her 89 year old mother, A. S., to her 57 year old chauffeur, Victor Castro. Numerous witnesses testified upon said hearing, including, but not limited to petitioner, the Alleged Incapacitated Person, (hereinafter referred to as "AIP") A. S., and her purported husband Victor Castro.

Petitioner's counsel has submitted a post-hearing Memorandum of Law dated 2/15/07 as well as a proposed Judgment Noticed for Settlement on 2/16/07. No other party, to this Court's knowledge, has submitted any other papers.

At the outset, on 12/19/06, the Court heard testimony from Dr. Nelson M. Fazio, of Scarsdale, New York, a specialist in Internal Medicine. Dr. Fazio testified that he saw Mrs. S., the AIP, now 89 years of age, on several occasions following

her hospitalization on 9/6/06 for a heart attack and possible stroke. More specifically, Dr. Fazio conducted a mental evaluation of Mrs. S. on 10/5/06 and 12/4/06 which revealed an abnormal mental state consistent with dementia. Notwithstanding her recent hospitalization for a heart attack and possible stroke, Dr. Fazio testified that it usually takes anywhere from 5 to 10 years to reach the level of dementia Mrs. S. was exhibiting. Dr. Fazio opined that one's judgment is necessarily impaired when one attains Mrs. S.'s level of dementia and further opined that she could not comprehend or appreciate any marriage ceremony. He was, in addition, of the opinion that due to her dementia, the Alleged Incapacitated Person no longer had the ability to medicate herself for any of her medical conditions including diabetes and high blood pressure in addition to her memory loss, nor to otherwise manage her own affairs, either personal or financial. [*2]

The Court also heard testimony from Allison Guthrie Fischer, Esq., a duly qualified appointee as per the requirements of the Office of Court Administration, who was appointed Court Evaluator herein per prior Order of this Court dated 10/18/06. As such, Ms. Fischer prepared a detailed 27-page Report dated 12/18/06, which Report was received in evidence in its entirety as Court Exhibit No.1. Ms. Fischer testified, in part, to having interviewed the above-noted Dr. Fazio, by telephone, in regards to the Alleged Incapacitated Person. Ms. Fischer reiterated Dr. Fazio's opinion that, in view of her apparent dementia, the Alleged Incapacitated Person, who for well over two decades had previously been in the business of buying, managing and selling mixed commercial and residential buildings in and about the Brooklyn-Queens border, was no longer able to manage her own affairs, either personal or financial. While he acknowledged that Mrs. S.'s mental state, which reflects a "very impaired short-term memory function", could have resulted from the heart attack and possible stroke she suffered on 9/6/06, Dr. Fazio informed Ms. Fischer that, in his professional opinion, the type and extent of memory loss exhibited by Mrs. S. is, in all likelihood, the result of long term, progressive dementia. (See Ct. Ex. #

1 in evidence at pg. 16 thereat).

Ms. Fischer testified as well concerning an interview she conducted with Mrs. S.'s daughter, petitioner Carmen R. in Hartsdale, New York where Mrs. S. is currently residing. Ms. Fischer described Mrs. S. as a petite, "remarkably beautiful", and well-groomed woman who was able to walk free of any cane or walker and without anyone else's assistance. (See Ct. Ex. #

1 at pg. 10 thereat). In response to Ms. Fischer's questions concerning her marriage to Victor Castro, the Alleged Incapacitated Person acknowledged that such a marriage had taken place but provided no coherent response to the further question as to why such marriage occurred, or as to when and where such marriage had taken place. Further, Mrs. S. informed Ms. Fischer that she had never lived with Victor and that she and Victor had never consummated the marriage. Moreover, and even more troubling to Ms. Fischer was the realization that the AIP and Victor had kept the "marriage" a secret from the AIP's family for almost three years.

Subsequently, Ms. Fischer was able to obtain a Marriage Certificate from the New York City Clerk's Office, reflecting the date of the subject marriage as being 9/24/03, in Queens Co., NY, a certified copy of which is annexed to Ms. Fischer's Report as Ex. "A".

Finally, and aside from Mrs. S.'s responses concerning the narrow issue of the marriage in question, Ms. Fischer found, in general, that Mrs. S.'s responses during the interview were inconsistent throughout and frequently inappropriate. Moreover, Mrs. S. left Ms. Fischer with the distinct impression that she would often try to hide her inability to recall by switching the subject to more casual conversation.

Thus, overall, while Ms. Fischer believed that a marriage may have taken place, she also believed that Mrs. S., the AIP, lacked the mental capacity to marry. Thus, as set forth in her Report (See Ct. Ex. #

1, esp. at pgs. 23 & 24 thereat), Ms. Fischer concluded that sufficient evidence existed herein to warrant a full exploration by the Guardian of the issue of the AIP's capacity, or lack thereof, to understand the nature and consequences of marriage, and, if necessary, (and as has now taken place) to initiate annulment proceedings on behalf of the AIP. [*3]

The Court, in addition, heard testimony from numerous other witnesses, inclusive of, inter alia, Mr. Victor Castro, purported husband of the AIP. Mr. Castro testified that he now lives in Ridgewood, Queens, is disabled, and currently unemployed. According to Mr. Castro, in sum and substance, he and the Alleged Incapacitated Person lived together for some 13 years in Brooklyn, NY. He further testified that by 2003, both he and the Alleged Incapacitated Person, whom he professed to love very much, decided that they would get married, and they did so, in Queens County, in the presence of two witnesses, Juan Alvarez and Carlos Miranda, both friends of Mr. Castro. However, according to Victor Castro, neither the Alleged Incapacitated Person's daughter Carmen R., nor her grandson, William R., were made aware of the marriage for the reason that the Alleged Incapacitated Person herself prohibited him from telling them about it. Victor Castro further testified that despite the fact that he held a green card, he never informed the U.S. Government or U.S. Postal Service or for that matter, any insurance carrier or utility company, that he and A. S. had wed. In fact, Mr. Castro acknowledged that the first time he publicly disclosed the marriage came some two weeks after the 9/24/03 wedding, at which time Mr. Castro, along with his alleged wife, the A.I.P., filled out an application with Immigration to bring his daughter Myra to the U.S. from Ecuador, a happenstance Mr. Castro referred to as a mere "coincidence".

Mrs. A. S., the A.I.P., also testified upon the instant hearing. In substance, Mrs. S., now 89 years of age, testified that while she had "heard" that she was married, she denied that any such marriage took place. Additionally, while she conceded that she knew a "Victor", she could not recall his last name and didn't remember marrying him. While she recalled that Victor used to visit her in the course of her businesses, i.e., investing in and "flipping" parcels of real estate as well as operating a limousine service, Mrs. S. testified that she never lived with Victor and never felt that she loved him. Moreover, Mrs. S. further testified that she never gave Victor permission to collect rents for her from her various rental properties and she expressly indicated that she did not want him to get any of her property or money.^[FN1]

The testimony of Ms. Carmen R., the petitioner herein and daughter of the A.I.P. A. S., flatly contradicts the testimony of Victor Castro. Ms. R., a Registered Nurse for over 40 years who now lives in Hartsdale, Westchester County with her mother, the A.I.P., had previously lived in Brooklyn for many years. She testified that her mother lived with her in Brooklyn throughout the period from 1980-2001. However, sometime in 2001, Ms. R. testified that the A.I.P. moved into a studio apartment where she would stay some two or three days a week in order to keep her real estate appointments and would then return home with her daughter for the balance of the week. Shortly thereafter, the A.I.P. purchased a home for herself in Queens. Most critically, Ms. R. testified that throughout this period, Victor Castro was not a friend of her mother's but rather was employed by her mother as a driver or chauffeur. Indeed, Ms. R. recalled that during this period Victor Castro always referred to her mother as "Mrs. S." and her mother, [*4]in turn, simply referred to Mr. Castro as "35", which was his call number assigned to him by the Phoenix Car Service. Ms. R. further recalled that Victor Castro had told her that he was living in a rooming house at that time. In addition, Ms. R. testified that prior to September 2006, neither her mother nor Mr. Castro told her of any "marriage" existing between them.

Ms. R. went on to testify concerning the events surrounding her mother's hospitalization in September 2006 for a heart attack and possible stroke. It was at that time, Ms. R. testified, while her mother was in intensive care, that she noticed Victor Castro's name listed as "husband" on a blackboard containing names of next of kin. During what Ms. R. described as a lucid moment after her mother had been removed from a ventilator, she asked her mother point-blank if she had married Victor, to which her mother replied that she married Victor to do him a favor, namely, to enable him to bring his daughter into the U.S. At the same time, however, the A.I.P. explicitly told her daughter that she had never lived with Victor and had never had sexual relations with him. The A.I.P., who according to her daughter, an R.N., had been exhibiting signs of dementia, including very poor memory and recall for the past five to seven years, had absolutely no recall as to when and how this marriage had taken place. Moreover, when shown Ex. #

3 in evidence, the Certificate of the Officiant who performed the subject marriage ceremony, Mrs. R. testified that she was very familiar with her mother's signature and that the signature which appears on the Certificate does not appear to be her mother's signature. In support of this conclusion, Ms. R. testified that her mother also suffers from Parkinson's Disease, which causes involuntary movement of the hand, thereby resulting in a rather shaky signature.The signature purporting to be Mrs. S.'s on the marriage certificate, Ex. #

3, on the other hand, appears far too neat and rehearsed to be her mother's signature according to Ms. R.

In addition, both Ms. R. and the Court Evaluator, Ms. Fischer, testified that it was not until Ms. R.'s mother became hospitalized in September 2006 that she had occasion to visit her mother's former apartment in Queens for the first time. In essence, Ms. R. testified to finding the apartment in a condition of absolute squalor. Moreover, she observed nothing whatsoever in the form of male clothing, male shoes, or other obvious masculine items which would in any way indicate that Victor had ever lived there.

Finally, the Court Evaluator's Report also includes the substance of an interview held with the AIP's longtime attorney, Frank Quintana, Esq. In the course of said interview, Mr. Quintana acknowledged that while handling a closing for the AIP, in or about August 2006, i.e., a sale of one of her properties, he became aware that the AIP had a number of judgments and liens filed against her, some dating back to the year 2000, which had to be paid off. Mr. Quintana also learned of a personal injury default judgment with attendant restraining notice, which had been obtained against the AIP in the sum of $75,525.00. Additionally, by September 2006, Mr. Quintana testified that the AIP had also received a notice of foreclosure which Mr. Quintana also paid off when the AIP was unable to provide proof of payment.

Mr. Quintana also was of the belief that three of Victor's daughters had been living rent-free at the AIP's former residence. He further recalled that in August 2006 the AIP had had approximately $200,000.00 in a Citibank money market account. However, Mr. William R., the AIP's grandson and Guardian of the AIP's property testified that the Citibank account in question [*5]only contained approximately $12,000.00 by mid November 2006, the balance of which, as testified to by the Court Evaluator, remains unaccounted for.

Recent appellate case law in this Department, reaffirms the proposition that an annulment of a marriage .... "is an available remedy in an Article 81 proceeding..... where the evidence .....shows that the party was incapable of understanding the nature, effect, and consequences of the marriage.'" See M. of Estate of Joseph S., deceased, a Person Alleged to be Incapacitated, 25 AD3d 804, 2nd Dept., at pg. 806 (2006), citing Levine v. Dumbra, 198 AD2d 477, 2nd Dept. (1993); see Dom Rel. Law §140(c) and §7[2]. It is abundantly clear, on the evidence adduced upon the hearing held herein, that the AIP, A. S., now 89 years of age, did not possess the requisite mental capacity to marry. Indeed, the parallels between the facts of the instant case and the facts of M. Of Joseph S., supra , where the 2nd Dept. unanimously affirmed so much of the lower Court's determination as had granted an annulment, are numerous and striking. Here, for example the AIP, now age 89 is some 32 years older than her would-be spouse; similarly, in Joseph S., supra , Joseph S. was some 43 years older than Juanita Kho, his former nurse and would-be spouse. Similarly, Joseph S., like A. S. herein, was not only of advanced age, but also suffered, as Mrs. S. did, from severe short-term memory loss. Like Mrs. S., Joseph S. was also found to be no longer able to care for himself, either in terms of personal needs or in matters of property management. In the instant case, such inability on the part of Mrs. S. due to the long-term effects of progressive Alzheimer's Disease/Dementia, coupled with Parkinson's Disease, were documented both by lay witnesses and expert witnesses (Dr. Fazio) alike.

A further parallel lies in the fact that the would-be spouse herein, Mr. Victor Castro, fully participated in and presented evidence upon the subject hearing, just as the would-be spouse Juanita Kho participated in and presented evidence upon the proceedings had in M. of Joseph S., supra .Here again, just as the testimony of Ms. Kho was found to be incredible in many key respects, in Joseph S., supra , so too does this Court find the testimony of Victor Castro to be incredible in many key respects in the instant case as well. First and foremost, the Court finds Victor's testimony that he had lived with the AIP for some 13 years to be utterly incredible and flatly contradicted by other testimony in this record, most notably that of Carmen R., the AIP's daughter. Other than Victor Castro's baseless assertions, there is simply no credible evidence in this record whatsoever to support his claim that he and the now 89 years old Mrs. S. shared a romantic relationship and cohabited together as man and wife. To the contrary, the credible evidence in this record, inclusive of the testimony of Mrs. S. herself, is that Victor Castro was simply Mrs. S.'s driver/chauffeur whom she referred to as "#

35", Victor Castro's assigned number with the Phoenix Car Service. Equally incredible is Victor Castro's assertion that it was only a "coincidence" that he and Mrs. S. jointly filed an application with Immigration just two short weeks after their alleged marriage to have his daughter come to the U.S. from Ecuador. Here again, all the other evidence in this record, inclusive of the testimony of Mrs. S., points to the inescapable conclusion that it was anything but a coincidence that Victor Castro applied to Immigration on his daughter's behalf when he did. To the contrary, persuading Mrs. S. to go along with a sham marriage, which Mrs. S. evidently agreed to do "as a favor" to Victor, was plainly engineered by Victor with but one purpose in mind, namely to lay the groundwork for his daughter to enter the U.S. No evidence whatsoever of true cohabitation, i.e., of Victor Castro and Mrs. S. living together as husband and wife, exists on this record. [*6]

Therefore, based on all the evidence in this record, the Court finds that the petitioner Carmen R. has proven by clear and convincing evidence, that her mother, A. S., was incapacitated and unable to provide for her own personal needs or manage her property, and, at the same time, was also "incapable of understanding the nature, effect, and consequences of the marriage" herein. See M. of Estate of Joseph S., deceased, supra , at pg. 806 thereat; see also Levine v. Dumbra, supra . Accordingly, the Court hereby declares the marriage herein to be null and void for want of understanding under Dom. Rel. Law §140(c) and §7(2), i.e., on the basis that Mrs. S. was incapacitated as a result of a progressive and long-term mental disease, i.e., advanced dementia dating back some five years or more, and was therefore incapable of consenting to the subject marriage.

Alternatively, under Dom. Rel. §140(e) and §7(4), the Court hereby declares the marriage herein null and void on the ground of fraud. It is abundantly clear on this record that Victor Castro's sole purpose in marrying A. S., a woman 32 years his senior, was to gain entry for his daughter Myra to the U.S. Coupled with the complete absence on this record of any credible evidence that the parties ever actually cohabited together, longstanding case law in this state supports the determination that the instant marriage is null and void on the ground of fraud. See Ernst v. Ernst, 32 NYS2d 759, Sup. Ct. NY Co., 1941, (Fawcett, J.); Bracksmayer v. Bracksmayer, 22 NYS2d 110, Sup. Ct. NY Co., 1940 (Benvenga, J.).

Petitioner's application to annul the instant marriage is therefore granted in all respects.

Such is the Decision of this Court. See Judgment and Order separately filed herewith.

Dated: White Plains, New York

April 24, 2007

________________________

PETER P. ROSATO

J.S.C.