Opinion
6570 File 5053/82D
05-24-2018
IN RE Ann C. MCCORMACK, BY her Special Guardian and Attorney-in-Fact Carol BAMONTE, Concerning the Estate of Kathleen Durst, Absentee and Alleged Deceased. Carol M. Bamonte, etc., Petitioner–Appellant, v. Robert Durst, Nonparty Respondent.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara Wolf & Carone, LLP, New York (Robert Abrams of counsel), for appellant. Kasowitz Benson Torres LLP, New York (Joshua A. Seigel of counsel), for respondent. Davidoff Hutcher & Citron LLP, New York (Charles Capetanakis of counsel), for Charles Capetanakis, guardian ad litem for Kathleen Durst.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara Wolf & Carone, LLP, New York (Robert Abrams of counsel), for appellant.
Kasowitz Benson Torres LLP, New York (Joshua A. Seigel of counsel), for respondent.
Davidoff Hutcher & Citron LLP, New York (Charles Capetanakis of counsel), for Charles Capetanakis, guardian ad litem for Kathleen Durst.
Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.
Order, Surrogate's Court, New York County (Nora S. Anderson, J.), entered on or about March 24, 2017, which, inter alia, denied petitioner's order to show cause seeking removal of the guardian ad litem, striking his report and staying the proceeding pending such determination, and determined the absentee's date of death to be January 31, 1987, unanimously modified, on the law, to determine absentee's date of death to be January 31, 1982 and, as so modified, affirmed, without costs.
This petition was brought by the estate of the mother of the absentee, Kathleen Durst (Kathleen), to declare her dead and determine her date of death.
The Surrogate's Court erred in finding that Kathleen died on January 31, 1987, the statutory default date under the applicable version of EPTL 2–1.7. Clear and convincing evidence established that the date of Kathleen's disappearance was the most probable date of death under EPTL 2–1.7(a).
Petitioner submitted evidence that Kathleen disappeared without explanation, and without her car and personal effects, on January 31, 1982. Kathleen has not been seen or heard from since that date. Kathleen's sisters submit affidavits in which they recite that they were close with her, and communicated with her several times a month, prior to her disappearance. They state that it is inconceivable that Kathleen would abruptly cease all communication with family and friends. Kathleen was also a medical student at Mt. Sinai Medical School at the time of her disappearance. She was two months away from graduation. According to her family it was Kathleen's dream to become a doctor and it would be incomprehensible that she would walk away from her studies when she was so close to her goal. Respondent Robert Durst has not submitted an affidavit refuting or explaining this evidence.
We find that this evidence is sufficient to establish a "high[ ] probab[ility]" that Kathleen died on the date of her disappearance ( Matter of Philip, 50 A.D.3d 81, 83, 851 N.Y.S.2d 141 [1st Dept. 2008] ).
The guardian ad litem's report (GAL), which is cited by Surrogate's Court in its decision, determined that lower court precedent was persuasive in finding that the statutory default period for determining death after disappearance under EPTL 2–1.7 should apply to this case. This lower court precedent is not on point, at least insofar as it concerns setting an earlier date of death pursuant to EPTL 2–1.7(a). In three cases cited by the GAL the petitioners sought the statutory default date of death, and not any earlier date (e.g. Matter of Ferguson, 2014 N.Y.L.J. LEXIS 3908 [Sur. Ct., Bronx County 2014] ; Matter of Putterman, 38 Misc.3d 1219(A), 2013 N.Y. Slip Op. 50157(U), 2013 WL 451902 [Sur. Ct., Nassau County 2013] ; Matter of Emile, 2010 WL 5553306, 2010 N.Y. Misc. LEXIS 6449 [Sur. Ct., Nassau County 2010] ). Matter of Diaz, 4 Misc.3d 1027(A), 2004 N.Y. Slip Op. 51083(U), 2004 WL 2187571 [Sur. Ct., Nassau County 2004], incorrectly cited by the GAL as Matter of Gartner, is decided under EPTL 2–1.7(b), a section we need not consider here given our holding under EPTL 2–1.7(a).
The GAL distinguished Matter of Cosentino, 177 Misc.2d 629, 676 N.Y.S.2d 856 [Sur. Ct., Bronx County 1998], which set a date of death earlier than the default date, as animated by equitable principles. In Cosentino, the court determined an earlier date of death where there was evidence that decedent's family would otherwise not qualify for certain benefits. The GAL also cited Matter of Klein, 2015 N.Y.L.J. Lexis 5843 [Sur. Ct., Suffolk County 2015] without distinguishing that case.
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In light of the above conclusions we need not reach the other issues on appeal.