Office of the City Clerk v. Noriega



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1Office of the City Clerk v. Noriega

OATH Index No. 1778/08 (Apr. 29, 2008)


Respondent appealed City Clerk’s denial of a marriage license, based upon the record of a 1996 marriage of a person with the same name and date of birth as respondent. The evidence established that respondent was not the person named in the 1996 marriage license. Thus, respondent’s appeal should be granted and her application for a marriage license processed.

_____________________________________________________


NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of

OFFICE OF THE CITY CLERK

Petitioner

- against -

JOANNE NORIEGA

Respondent

______________________________________________________



REPORT AND RECOMMENDATION

JULIO RODRIGUEZ, Administrative Law Judge

This is an appeal, under section 3-03 of the City Clerk’s rules, title 51 of the Rules of the City of New York, from petitioner’s preliminary denial of respondent’s application for a marriage license.

On January 16, 2008, petitioner denied respondent’s application after it discovered a record of a prior marriage license issue in February 1996 to Jose Tamay and a person with respondent’s name and date of birth. Petitioner had no record that the 1996 marriage had been terminated. See Dom. Rel. Law § 15 (Lexis 2008) (authorizing city clerk to inquire and determine whether applicant is entitled to a marriage license).

Respondent filed a timely request for review of the denial. She acknowledged two prior marriages and provided divorce decrees for both. Respondent denied applying for the 1996 marriage license to marry Jose Tamay and asserted that she was the victim of identity theft.

A hearing was conducted on April 18, 2008. Petitioner relied on documentary evidence consisting of the 1996 marriage application and license, respondent’s request for Review of Denial of Marriage License form, and respondent’s instant marriage license application (Pet. Exs. 1 – 3). Respondent testified, called her mother, Adela Baez, as a witness, and offered supporting documentation consisting of two divorce decrees, 1996 tax returns, and several documents containing her signature (Resp. Exs. A – F). For the reasons stated below, I find by a preponderance of the credible evidence that respondent is not the person who applied for and was issued the February 1996 marriage license. I recommend that respondent’s application for a marriage license be accepted for filing.
ANALYSIS

Under section 15 of the Domestic Relations Law, “[t]he City Clerk shall have the burden of demonstrating by a preponderance of the evidence that the applicant should not be granted a marriage license.” 51 RCNY § 3-03(b)(8). Petitioner, concededly, has not met this burden. Respondent presented convincing testimony, supported by documentary evidence, that she is not the same person who applied for and was granted the February 1996 marriage license.

The February 1996 marriage license was issued to Jose Tamay and a person purporting to be Joanne Noriega. Respondent testified that she did not know anyone named Jose Tamay and denied ever being married to Jose Tamay. Respondent testified that she resided in Puerto Rico from 1976 to May 13, 2007, when she moved to New York. During that time, she married twice. Respondent’s first marriage in 1980 and second marriage in 1993 each lasted approximately ten years. She offered divorce decrees issued by Superior Courts in Puerto Rico as proof that both marriages had been terminated (Resp. Exs. A & B).

Respondent recalled visiting New York twice during the thirty years she lived in Puerto Rico. Her first visit was in 1992 for a two week vacation. The second was a three day stay in 1997 to visit her brother who had taken ill. Respondent emphasized that she lived in Puerto Rico and did not visit New York in 1996. Respondent provided a copy of her 1996 tax returns that she filed jointly with her then husband, Jose A. Martinez, in Puerto Rico, as proof of residency in 1996. The forms list a home address in Carolina, Puerto Rico.

Adela Baez testified and corroborated respondent’s testimony that she resided in Puerto Rico from 1976 to 2007, that she visited New York on only two occasions, and that respondent was not in New York in 1996. Mrs. Baez similarly testified that she did not know anyone named Jose Tamay and that respondent was never married to anyone by that name.

Respondent asserted that she was the victim of identity theft. She testified that in January or February of 1987, she lost her wallet in Carolina, Puerto Rico. The wallet which contained her driver’s license, social security card, and birth certificate, was returned by an unknown individual who mailed the wallet and its contents to respondent’s residence in Puerto Rico. Respondent did not file a police report when she lost the wallet and did not think it necessary after the wallet had been returned.

In 1994, respondent discovered that she had been the victim of identity theft when she applied for a Pell Grant while applying to attend college. Respondent was denied the grant because records indicated that she had an outstanding student loan. Respondent denied applying for any student loans. To corroborate her testimony, she offered a letter from the United States Department of Treasury dated May 16, 2003, in which she was informed that a tax refund due to her and her former husband was applied to offset a debt she owed to the United States Department of Education (Resp. Ex. E). Respondent testified that she has made efforts to rectify the situation but has been unsuccessful to date.

Respondent submitted a letter from the Internal Revenue Service dated April 14, 2008, as additional evidence to support her claim that someone has been illegally using her personal information. The letter indicated that a portion of her tax refund was used to offset federal taxes she allegedly owed from the 2000 tax year under a different social security number (Resp. Ex. F). Respondent denied that she owed taxes and testified that she was not familiar with nor did she ever use the social security number listed on the form.

Respondent argued that the signatures on the February 1996 marriage application and license were not hers. She offered numerous documents that contained her signature, such as her 1996 tax returns, a credit card, health insurance card, a cancelled check, and a subscription order form for broadband internet service. A comparison of the signatures supports her claim that the signatures on the February 1996 marriage application and license are substantially different from her own (Resp. Ex. C; ALJ 2; Resp. Ex. D).

I found respondent’s testimony credible and supported by the corroborating documentation. The signatures on the February 1996 marriage application and license were substantially different from those respondent acknowledged as her own. Respondent’s testimony regarding the loss and return of her wallet was detailed, straightforward, and unembellished. Petitioner’s counsel did not challenge respondent’s credibility or documentary evidence. In short, based upon respondent’s testimony and the supporting documentation, I find that respondent is not the same person who applied for and was issued a marriage license in February 1996 to marry Jose Tamay. Accordingly, respondent’s appeal should be granted and her application for a marriage license processed.


Julio Rodriguez

Administrative Law Judge

April 29, 2008



SUBMITTED TO:
HECTOR L. DIAZ

City Clerk
APPEARANCES:
PATRICK SYNMOIE, ESQ.

Attorney for Petitioner
JOANNE NORIEGA

Respondent, Pro Se


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