## Facts

- Wilder Gomez, an employee of Windows on the World, died on September 11, 2001, in an event found to have arisen out of and in the course of employment.
- Two women sought workers’ compensation death benefits as Gomez’s surviving spouse: Tatiana Gomez (the later New York spouse) and Elisa Gomez Escalante (the earlier Colombian spouse).
- Escalante married Gomez in Colombia in 1984, and they had three children.
- Before marrying Gomez, Escalante had married Guillermo Rojas in 1981; Escalante maintained that marriage ended before her 1984 marriage to Gomez.
- Gomez emigrated to the United States alone in 1991 and married Tatiana in New York in 1992.
- After emigrating, Gomez continued to support Escalante and their children in Colombia.
- In proceedings before the Workers’ Compensation Law Judge (WCLJ), Escalante submitted a translated Colombian civil registry record indicating she obtained a “separación de cuerpos” from Rojas and later “contracted civil matrimony” with Gomez.
- Based on the translation and counsel’s representations, the WCLJ treated the “separación de cuerpos” as a legal separation (not a divorce), found Escalante’s capacity to marry Gomez “questionable,” and awarded death benefits to Tatiana, relying on New York’s presumption favoring the validity of the most recent marriage.
- On administrative review to the Workers’ Compensation Board, Escalante submitted additional Colombian materials, including the actual order of “separación de cuerpos” and an affidavit from an experienced Colombian attorney explaining that, under then-existing Colombian law, “separación de cuerpos” could function as the equivalent of divorce for certain marriages and that the civil registry document was a definitive record of legal status.
- The Board affirmed the WCLJ’s decision identifying Tatiana as the legal widow, and Escalante appealed.

## Issues

1. Whether the Workers’ Compensation Board’s determination that Tatiana Gomez was the decedent’s legal widow was supported by substantial evidence where Escalante submitted Colombian documentary proof and an attorney affidavit rebutting the presumption favoring the validity of the decedent’s later New York marriage.

## Decision

- The Appellate Division reversed the Board’s decision and remitted the matter for further proceedings.
- The court held the Board should have considered the additional evidence submitted on Board review.
- The court concluded Escalante’s proof sufficiently rebutted the presumption favoring the later New York marriage and that, because Tatiana failed to present affirmative proof that Escalante’s marriage to the decedent was invalid, the Board’s widow determination was not supported by substantial evidence.

## Legal Principles

- New York recognizes a strong presumption that the most recent of two marriages is valid; the party challenging the later marriage bears a heavy burden to show the prior marriage was not dissolved.
- Once the presumption is rebutted by competent proof, the party relying on the later marriage must come forward with affirmative evidence of the prior marriage’s invalidity or dissolution.
- In reviewing workers’ compensation determinations, the Appellate Division examines whether the Board’s decision is supported by substantial evidence on the record as a whole.
- When marital capacity turns on foreign proceedings and records, tribunals must evaluate competent foreign documents and affidavits explaining the legal effect of those materials under the foreign jurisdiction’s law.
- On administrative review, the Board must meaningfully address significant evidence submitted with an application for Board review when it bears on the dispositive question.

## Conclusion

Because Escalante’s Colombian records and the Colombian attorney’s affidavit were sufficient to rebut the presumption that the decedent’s later New York marriage was valid, and because Tatiana did not supply affirmative proof that Escalante’s prior marriage to the decedent was invalid or ended, the Appellate Division found the Board’s legal-widow determination unsupported by substantial evidence, reversed, and remitted for further proceedings.


Gomez v. Windows on the World, 804 N.Y.S.2d 849 (2005)