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Parker v. Parker12/8/2003
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This is a motion by the husband for an order pursuant to CPLR 3403(a) and DRL 249 granting a trial preference. The wife moves for a protective order enjoining the husband from disseminating any transcriptions of her examination before trial and for a further protective order "limiting the scope of the plaintiff's discovery."
The parties were married on June 20, 1987. At the time of the marriage, the husband was 61 and the wife was 58 years old. Both parties had been widowed prior to their marriage to each other. The husband is presently 77 and the wife is 74 years old. The husband has five adult children from a prior marriage. The wife has three adult children from a prior marriage. The husband has submitted a physician's affidavit stating that he is suffering from Adeno Carcinoma, a form of metastatic lung cancer that has spread to his vertebral column. The affidavit further states that the husband's condition will deteriorate and that the chances of remission are extraordinarily low.
In June 1987, prior to their marriage, the parties executed and acknowledged a written agreement waiving their respective rights of election in the other's estate. Said agreement also provides, to wit: "In the event of a divorce, separation of the parties or annulment of the marriage no claims shall be made by either party against the other's title and interest in his or her separate and sole property. Sole and separate property shall include any real or personal property individually owned by either party whether the same be acquired prior to or subsequent to the execution of this agreement and marriage of the parties. Marital property shall include only such real or personal property held jointly or by the entirety."
During the marriage, the parties lived modestly in a rental apartment. The husband had income of approximately $2100.00 to $2400.00 a month from social security and a pension. The wife received $400.00 a month social security and a pension, in an undisclosed monthly amount. The parties maintained a joint checking account. The wife received a personal injury settlement of $18,000.00 and did not deposit said funds into the joint account.
The parties vacationed in Las Vegas and Atlantic City on various occasions. They both gambled during such trips. The wife regularly played the New York State lottery using the same sets of numbers comprised of family birth dates and ages.
On February 12, 2003, a lottery ticket purchased by the wife was the only winning ticket of a $25,000,000.00 lottery prize. On March 6, 2003, the parties and one of the wife's children took a limousine to Madison Square Garden to collect a check for $8,590.077.00. The check was made payable to the wife. There were additional taxes due on said winnings of $1,300,000.00. On March 7, 2003, the parties met with an accountant. On March 8, 2003, they met with an agent from Merrill Lynch. On March 19, 2003, the parties signed a contract to purchase a condominium in Melville for $490,000.00. On April 8, 2003, the wife placed the lottery winnings into the Concelia Parker Living Trust. As of April 25, 2003, said trust had $8,000,950.69 on deposit in a Merrill Lynch account. The trust document provides that upon the wife's death, the husband receives any residence in which he resides at the time of her death. In addition, he receives the income from $500,000.00 segregated into a marital trust. The balance of the trust passes to the wife's children. Both parties attended the closing of the Melville condominium on April 25, 2003. Title to the condominium was placed in the name of the Con
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