Opinion
No. 2020-2236/A
06-24-2022
In the Matter of the Estate of Anthony J. Condida, Deceased.
PAUL J. SMALDONE, ESQ. Appearing for Marissa R. Notto, Estate Administrator MONA BASKIN, ESQ. Guardian ad Litem for Possible Unknown Heirs HON. LETITIA JAMES, ESQ., N.Y.S. ATTORNEY GENERAL Cited for Possible Unknown Heirs Melissa H. Thore, Esq., of Counsel
Unpublished Opinion
PAUL J. SMALDONE, ESQ.
Appearing for Marissa R. Notto,
Estate Administrator
MONA BASKIN, ESQ.
Guardian ad Litem for Possible Unknown Heirs
HON. LETITIA JAMES, ESQ., N.Y.S. ATTORNEY GENERAL
Cited for Possible Unknown Heirs
Melissa H. Thore, Esq., of Counsel
HON. ACEA M. MOSEY ERIE COUNTY SURROGATE JUDGE
Decedent Anthony J. Condida [hereafter, Anthony] died intestate on May 30, 2020, at the age of 50, in Buffalo, New York, survived by three adult non-marital children. While Anthony was married once during his lifetime, this brief marriage ended in divorce and there were no children born of the marriage.
A petition for Letters of Administration was filed by decedent's non-marital daughter Marissa Rose Notto [hereafter, Marissa] which identified two other adult non-marital children: Vincent A. Notto [hereafter, Vincent] and Matthew John Pascall [hereafter, Matthew]. Marissa was eligible to serve upon filing proof of paternity in compliance with EPTL 4-1.2. On October 13, 2020, letters of administration were issued to Marissa.
Matthew's Birth Certificate and the Acknowledgment of Paternity show his full name as "Matthew John Pascall Condida." During testimony, Matthew's mother Mary Beth explained Matthew legally changed his name to Matthew John Pascall upon turning age eighteen.
An Order of Filiation and Support for Marissa and Vincent dated January 21, 2000, and an Acknowledgment of Paternity dated July 7, 1999, for Matthew were efiled with the Petition for Letters of Administration and later entered into evidence at the kinship hearing conducted on November 16, 2021.
Pending before me now is an advice and direction proceeding in which the Court is asked to determine the parties entitled to share Anthony's net estate. I set the matter down for an evidentiary hearing on the kinship issues after all parties, including unknown heirs and the Attorney General of the State of New York, had been duly cited. Mona Baskin, Esq. [hereafter, Baskin] was appointed as guardian ad litem for possible unknown heirs and jurisdiction has been obtained over all necessary parties.
On consent of the parties, that hearing was held before a Court Attorney on a hear and report basis. The parties also waived the filing of a written report and consented that I might decide the issues based upon the testimony and documents produced at the hearing (see SCPA 506[6][c]).
I now find and decide as follows.
(A)
Pursuant to EPTL 4-1.2, the right of non-marital children to inherit from their birth fathers depends on proof of paternity by one of four methods: (1) an order of filiation by a court of competent jurisdiction during the lifetime of the father; (2) an acknowledgment of paternity executed by the parents of the child pursuant to Public Health Law Section 4135-b and filed in the district in which the birth certificate is filed; (3) a signed instrument, acknowledging the paternity by the father in a manner required to record a deed; or (4) by clear and convincing evidence, which may include, but is not limited to, evidence derived from a genetic marker test, or evidence that the father openly and notoriously acknowledged the child as his own.
Additionally, in cases where there is a non-marital child, issues concerning kinship generally and class-closing arise.
A claimant has the burden of proving kinship (see, e.g., Matter of Flavin, 15 Misc.3d 1104 A [2007]), and she or he must establish that she or he is the decedent's closest blood relative as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). This burden is met by a preponderance of the evidence (see, Matter of Paul, 2017 NY Misc. LEXIS 674, 2017 NY Slip Op 30355U [dec. Feb. 17, 2017]; see also, Matter of Whelan, 93 A.D.2d 891 [1983]). For kinship to be established to the satisfaction of the Court, a claimant must make an evidentiary showing (1) how she or he is related to the decedent, and (2) that no other persons of the same or a nearer degree of relationship survived the decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be "closed" (see e.g., Matter of Alao, NYLJ, March 19, 2002, at 20, col 5).
(B)
Five witnesses testified at the hearing: decedent's mother, Gloria J. Condida [hereafter, Gloria]; decedent's close friend, Marguerite Miller [hereafter, Marguerite]; decedent's former girlfriend and mother of decedent's non-marital son Matthew, Mary Beth Pascall [hereafter, Mary Beth]; decedent's former girlfriend Barbara Susan Robson [hereafter, Barbara]; and Marissa, decedent's non-marital daughter.
Anthony was born and raised in Buffalo, New York, where he lived all his life. Over the years, Anthony had numerous serious relationships with girlfriends and one brief marriage. When these relationships ended, Anthony often moved back home with his mother Gloria until he would purchase another home to move into, make repairs to the home, and then sell. Anthony's usual occupation involved manufacturing work and maintenance work for properties in Buffalo.
Gloria and her son had a close mother/son relationship. Gloria explained he would confide in her and discuss his personal life. Gloria testified she would give motherly advice, "[n]ot always that he liked."
Anthony attended West Seneca West High School where he met Marguerite when they were fifteen years old. Anthony and Marguerite were high school sweethearts and dated for approximately four years. After their romantic relationship ended, their friendship continued and strengthened. Marguerite testified she considered Anthony her best friend, and she explained how and why she always knew Anthony's personal information:
" he always tried to introduce me to his girlfriends so that - so that we got along. So that they understood our friendship."
After high school, Marguerite that recalled Anthony signed up for Army basic training, but he never completed training or enlisted in service. Marguerite said that" he realized it was not for him." Anthony's mother Gloria also recalled he never submitted all the necessary paperwork to complete his training.
Thereafter in the early 1990s, Anthony began his first serious relationship with Sondra Marie Notto [hereafter, Sondra]. Gloria explained that Anthony "lived on and off with her." The couple's first child, Marissa, was born on XX/XX/1995. Marissa's birth certificate identifies Anthony as her father, and he was twenty-five years old when Marissa was born. A January 3, 1996, Order of Filiation and Support granted by Erie County Family Court has also been submitted establishing Anthony as Marissa's father.
The 1996 Order of Filiation and Support was later revised by a separate Order of Filiation and Support dated January 21, 2000, to include Marissa's brother Vincent.
Two years later, the couple had a second child together, Vincent, who was born on XX/XX/1997. While Vincent's birth certificate does not identify any father by name, a January 21, 2000, Order of Filiation and Support granted by Erie County Family Court was admitted as evidence of paternity for Vincent.
Marissa testified she and her brother Vincent primarily lived with their mother Sondra, but she explained there were also times during their childhood that she lived with Anthony. Marisa and all the other witnesses testified Anthony was a constant presence in Marissa's and Vincent's upbringing, providing care and support. According to Marissa, she and her father had a close relationship:
"Yeah, I spent holidays with my dad. They would kinda go back and forth with holidays. I've lived with my dad a couple of years as an adult. My dad got custody of me, and I lived with him and Barb for a couple of years. So I spent a lot of time with my dad."
After Vincent was born, Anthony and Sondra's relationship ended. The couple never married and they had no children together other than Marissa and Vincent.
In 1998, Mary Beth testified that she and Anthony, who by that point had known each other for a couple of years, moved into a home together in West Seneca. On XX/XX/1999, Mary Beth and Anthony's son Matthew was born. Matthew's birth certificate identifies Anthony as his father. An Acknowledgment of Paternity for Matthew signed by Anthony on XX/XX/1999, has been submitted, and a March 15, 2000, Order of Filiation granted by Erie County Family Court was also admitted as evidence of paternity for Matthew. There was testimony from Mary Beth acknowledging that Anthony had two other children from a previous relationship, namely Marissa and Vincent, who Anthony would bring to their house for visits and to spend holidays together as a family.
Mary Beth testified that she and Anthony had separated by the end of 1999. Mary Beth and Anthony never married and had no other children together. There was testimony from all the witnesses that Anthony continued his parental relationship with Matthew after the separation, and Mary Beth recalled:
"We went to court for, you know, child support and then he'd come and pick him up like every two weeks for a visit, and then keep him all day, and then bring him back."
In 2000, Barbara testified she met Anthony and they began a relationship. The following year, they moved into a home together in Amherst where they continued to live for the next eleven years. Barbara confirmed Anthony had three children from two previous relationships, namely Marissa, Vincent, and Matthew, who often visited their home and with whom they spent holidays together. Barbara and Anthony never married and had no children together. Barbara confirmed she had a son from a previous relationship whom Anthony never adopted.
Due to Barbara's health concerns, Anthony decided to undergo a vasectomy procedure in the early 2000s. Anthony shared this personal and voluntary decision with people closest to him (including Gloria, Marguerite, Barbara and Marissa).
Once Barbara and Anthony's decade long relationship ended, there was consistent testimony that Anthony met a woman named Renee Boyea [hereafter, Renee] whom Anthony married on June 23, 2011. Marguerite elaborated, "He got married on his lunch break. He actually went back to work."
This marriage was brief and tumultuous, ending in divorce in 2013. Renee and Anthony had no children together. Renee had children from previous relationships whom Anthony never adopted.
The Final Judgment of Divorce dated August 29, 2013, was received into evidence and reflects there were no children born of the marriage.
The testimony of all the witnesses regarding Anthony's relationships with various women and with the children he fathered was credible and consistent. While Anthony had other casual relationships with different women, Marguerite, Gloria, and Marissa all testified they would have known if Anthony had any other children because Anthony would have been involved in their lives as he was with Marissa, Vincent, and Matthew. Gloria recalled that, over the years, Anthony would bring Marissa, Vincent, and Matthew to her home to visit and spend holidays together. Marissa stated no other person approached her at the decedent's funeral or thereafter claiming to be a child of Anthony. Furthermore, Marguerite testified:
"Q: Okay, and do you think that if Anthony had any other significant relationships that you would've met his girlfriends?'
A: Yeah. Yeah, that's kind of our thing.
Q: Okay and if Anthony had any other children other than Marissa and Vincent and Matthew, do you think you would've had occasion to meet those children?
A: Definitely, yes."
(C)
After the conclusion of the kinship hearing, Baskin submitted her Report and Recommendation, stating that she is satisfied that Marissa, Vincent and Matthew are Anthony's distributees and that all distributees have been identified.
I find the proof sufficient to establish that Anthony married one time during his lifetime, that there were no children of the marriage, and that this marriage ended in divorce.
I further find Orders of Filiation and Support for Marissa and Vincent, an Order of Filiation for Matthew, and an Acknowledgment of Paternity for Matthew, were received into evidence and establish their status as Anthony's children pursuant to EPTL 4-1.2(a)(2)(A). Searches were conducted by the New York State Putative Father Registry and by Erie County Family Court, the results of which identify Marissa, Vincent, and Matthew as Anthony's children and exclude the existence of other possible children.
Accordingly, I find, from the totality of the testimony and evidentiary material before me, that that Anthony left three children, Marissa, Vincent, and Matthew, as his distributees, and that the class of issue is closed. Marissa, Vincent, and Matthew are each entitled to a one-third share of Anthony's net estate.
I further find that the current fee application from Baskin, the guardian ad litem for possible unknown heirs, in the amount of $1,400.00, is fair and reasonable under all the circumstances of this case. The fee request has not been objected to by any of the parties, it is hereby approved, and it shall be paid within 20 days of this Order.
This decision shall constitute the Order and Decree of this Court and no other or further order or decree shall be required.