Matter of Sanchez

[*1] Matter of Sanchez 2009 NY Slip Op 50324(U) [22 Misc 3d 1128(A)] Decided on February 27, 2009 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 27, 2009
Sur Ct, Nassau County

In the Matter of the Application to Declare Frank Sanchez, Sr. Deceased Pursuant to EPTL 2-1.7.



351582



ttorneys:

Petitioner:Oberlander & Oberlander, Esqs.

100 Quentin Roosevelt Boulevard, Suite 506

Garden City, New York11530

Guardian ad litem: Mindy Smolevitz, Esq.

Jaspan , Schlesinger, & Hoffman, LLP300 Garden City Plaza

Garden City, New York11530

John B. Riordan, J.

The instant application is made by Frank C. Sanchez, Jr. ("petitioner") pursuant to EPTL 2-1.7 to declare Frank C. Sanchez, Sr. ("absentee") dead as a result of his absence for a continuous period of three years. petitioner is the absentee's son. A guardian ad litem was appointed to represent the absentee.

The absentee, a United States citizen, was last seen on August 30, 2001 when he left his home in Baldwin, New York to travel to visit his friend Matthew Grillo (Sanchez aff. ¶ 14).[FN1] The absentee was traveling to Lizard Racing, located on eastern Long Island, to meet with Mr. Grillo (Sanchez aff. ¶ 14). The alleged absentee left driving a white 1992 Chevrolet Lumina with license plate AKW6696 and was accompanied by his brother Edgar Sanchez (Sanchez aff. ¶¶ 15, 16). During a telephone conversation petitioner had with Mr. Grillo, he stated that neither the absentee nor Edgar Sanchez ever arrived at Lizard Racing on August 30, 2001 (Sanchez aff. ¶ 17).

On the morning of September 1, 2001, petitioner's mother, Jan Renee Sanchez ("Mrs. Sanchez"), filed a missing person's report via a 911 telephone call to the Nassau County Police (Sanchez aff. ¶ 18). In addition, the absentee's family distributed a missing person's flyer (which included pictures of the absentee and Edgar Sanchez) advising anyone who may have seen the absentee, Edgar Sanchez, or the 1992 Chevrolet Lumina to call the detectives on the case (Sanchez aff. ¶ 20). In a report prepared by the guardian ad litem, she indicates that the petitioner advised her during a conversation that at the time of the absentee's disappearance he had been married to Mrs. Sanchez for twenty-five to thirty years and that there was no reason why his father would have walked away from the family. Furthermore, the petitioner indicated during his conversation with the guardian ad litem that their family was never threatened nor were any funds missing from the absentee's bank accounts. [*2]

A Victim's Crime Report issued by the Nassau County Police Department on January 24, 2006, pursuant to a request by the absentee's family, indicates that the absentee is "still missing." (Sanchez aff. ¶ 19). To date, the absentee has been absent for a continuous period of more than three years, he has not been heard from nor has his absence been satisfactorily explained (Sanchez aff. ¶ 2).

EPTL 2-1.7(a) provides that "[a] person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death."

"To invoke the statutory presumption of death granted in EPTL 2-1.7(a), the petitioner must establish absence, a diligent search, that there is no satisfactory explanation for the absence and during the absence there was no communication with the absentee" (Matter of Hettich, NYLJ, July 28, 2000 at 33 col. 2 citing Matter of D'Urso, NYLJ, October 22, 1987 at 31 col. 1; see also Matter of Cosentino, 177 Misc 2d 629 [Sur Ct, Bronx County 1998]). Petitioner has established that since August 30, 2001, his father has been absent from the family home in Baldwin, New York, and that there has been no communication with the absentee since that date. In addition, there has been no satisfactory explanation for the absentee's disappearance. According to the petitioner, the marriage the absentee had with his wife was a long-standing, healthy marriage of twenty-five to thirty years (the absentee's wife is now deceased). Furthermore, in his affidavit, the petitioner indicates that the relationship between the absentee and his children was one of mutual respect and deep abiding love (Sanchez aff. ¶ 11) and that to his knowledge there was no reason why his father would have walked away from the family.

A determination that a diligent search was conducted to locate the absentee's whereabouts must also be made before the presumption of death from absence arises. In Matter of Cosentino, (177 Misc 2d 629, 631 [Sur Ct, Bronx County 1998]) the petitioner established that a diligent search was conducted by providing evidence that there had been no unusual withdrawals from the absentee's bank accounts, no cash advances on his credit cards and that his passport was left at home. Additionally, the petitioner in that case established that she had reported her husband missing the morning after he went missing and that the absentee, " left behind all of his known personal property, except the clothes he was wearing when he left the apartment.'" (Id.). Police reports further established that the police conducted an extensive investigation into the whereabouts of the absentee including checking records in the hospitals and morgues for unidentified males matching the absentee's description as well as an examination of his vehicle and forensic testing indicating that nothing out of the ordinary happened to the absentee while in the automobile (Id. at 630). Finally, the petitioner consulted a company that searches a nationwide database for evidence on missing persons (Id.).

In the instant case, petitioner has established through his affidavit and conversations with the guardian ad litem that his mother filed a missing person's report with the Nassau County Police Department one day after the absentee was missing, and that missing person's flyers were widely distributed by the family advising anyone with information about the absentee's whereabouts to contact detectives at the Nassau Police Department or the family. Additionally, the petitioner in this case, like the petitioner in Cosentino, searched the absentee's bank accounts to see if any monies had been withdrawn. Petitioner has demonstrated that the absentee has been missing for a continuous period of over three years, that prior to his disappearance the absentee's [*3]relationship with his wife and family was stable and loving, and that he has not been heard from or of since his disappearance on August 30, 2001.However, there is no evidence of what efforts were made by police and other family members to locate the whereabouts of the absentee, precluding, at this point, a determination that a diligent search was conducted. Therefore, at this time this court is unable to determine whether this petitioner has satisfied the diligent search requirement set forth in EPTL 2-1.7. This matter will remain open, pending submission of additional affidavits or other evidence demonstrating what efforts were made to locate the absentee in addition to those already mentioned.

This constitutes the decision and order of the court.

Dated: February 27, 2009

John B. Riordan

Judge of the

Surrogate's Court Footnotes

Footnote 1: Mr. Sanchez's Affidavit is cited to as (Sanchez aff. ¶ #).