Matter of Auchmoody

[*1] Matter of Auchmoody 2013 NY Slip Op 51472(U) Decided on August 30, 2013 Sur Ct, Oneida County Gigliotti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2013
Sur Ct, Oneida County

In the Matter of ACCOUNTING BY JOSEPH J. TIMPANO AS ADMINISTRATOR OF THE ESTATE OF Edith G. Auchmoody a/k/a GERTRUDE AUCHMOODY



2008-344/B



For the Petitioner

Steates, Remmell, Steates and Dziekan

Joseph J. Timpano, Administrator:

By: F. Paul Steates, Esq.

The Referee:

Peter J. DiGiorgio, Esq.

For the Respondent

David Auchmoody:

David G. Goldbas, Esq.

Louis Gigliotti, J.

A petition to judicially settle the account of the petitioner Joseph J. Timpano in

the above-captioned estate was filed on April 8, 2011. As discussed in this Court's prior Decision and Order dated November 4, 2011, the Respondent David Auchmoody (hereinafter "David") received Letters appointing him Administrator of the estate of his mother Edith G. Auchmoody (hereinafter "Edith"). David subsequently pled guilty to Criminally Negligent Homicide in connection with the death of his mother.

The Letters were subsequently revoked by the Court, sua sponte, on October 16, 2008, upon the ground that as a convicted felon, he was ineligible to receive letters. Mr. Timpano, in his capacity as Chief Fiscal Officer of Oneida County thereafter petitioned for Letters d.b.n. and Letters were issued to him on January 15, 2009.

Because the accounting submitted proposes to pay the net estate proceeds to David, the Court appointed the Referee herein to investigate and report to the Court regarding issues of fact related to David's involvement in the death of Edith. The issues involve whether the forfeiture doctrine which prohibits one from inheriting from a decedent's estate based upon acts of a beneficiary in causing the death of the decedent, See Riggs v. Palmer, 115 NY 506; Matter of Wells, 76 Misc 2d 458, is applicable to David [*2]in the instant case. As previously noted, on March 28, 2008, David pled guilty to Criminally Negligent Homicide, a Class E felony, in connection with the death of his mother Edith. The plea was taken in full satisfaction of a Grand Jury indictment on felony counts of Manslaughter in the Second Decree, Criminally Negligent Homicide and Endangering the Welfare of a Vulnerable Elderly Person in the First Degree.

The Referee issued a report dated February 3, 2012, wherein he determined that sufficient facts existed which, if proven at a hearing, would establish by a preponderance of the evidence that David's failure to act and obtain nursing or medical care for Edith constituted reckless acts that caused her death. On May 31, 2012, the Referee filed two Objections to the petition for judicial settlement of the account filed by petitioner. One Objection (denominated "3A.") asserted the proposed distribution of the balance of the estate, including Edith's real property located at 5589 Judd Road, Whitesboro, New York to David as sole distributee was prohibited based upon the forfeiture doctrine discussed herein. A hearing, limited to Referee's Objection 3A., was subsequently scheduled.

The hearing in this proceeding commenced on September 11, 2012, continued on October 1, 2012 and concluded on November 20, 2012. Christine Reilly, Timothy Klock, Dr. Scott Brehaut and Peter Healt were witnesses called by the Referee and Anthony Matt, George DeFazio and David Auchmoody were called by David's counsel to testify. The Court heard the testimony of the witnesses, was able to observe their demeanor and manner of testifying and was able to assess the credibility of each witness.

Christine Reilly, a Sergeant with the Oneida County Sheriff's Department testified that she was called to the Auchmoody residence on Judd Road on February 22, 2007 for an unattended death. She described the layout of the residence and identified David as having been present, together with Deputy Chrysler and Deputy Worthy of the Sheriff's Department.

Sgt. Reilly stated Edith's body was on the left side of the residence in a living room occupied by David and it was covered. David told her he had been caring for Edith and that she had been bedridden since mid-December, 2006. Sgt. Reilly confirmed Edith was deceased and overheard David tell the deputies that the body had been moved. David told her that the clothing covering Edith's body was not what she was wearing when she passed away. David stated the nightshirt Edith had been wearing was in another room.

David told the officers that Edith had not allowed him to bathe or toilet her, but after she expired David cleaned the body and then moved the body to his side of the residence. David then showed the officers Edith's side of the residence. Sgt. Reilly followed David into the kitchen and immediately noticed a stench, which she described as horrible. She observed empty food containers and other garbage which she stated was up to her waist. She stated she could not enter either the living room or the bedroom because the debris was piled up as high as her own height of 5'6". She observed two blown up mattresses stacked on top of a bed mattress in the bedroom. She described the path into the bedroom as approximately six inches wide. She observed a bucket with pinkish water in the bedroom, which had been used by David to clean the body. She noticed there was a bathroom near the bedroom but it could not be accessed due to stacked debris. Sgt. Reilly asked David what Edith was fed and he showed her [*3]Gerber Graduate and protein drink containers.

Sgt. Reilly returned to the left side of the residence and removed the clothes covering Edith's body. She observed multiple sores over the body, some of which had gangrene and bones protruding from the skin.

On cross-examination, Sgt. Reilly testified David told them that he previously brought Edith to the hospital emergency room when she had injured her knee but they hadn't been back to a hospital since then. She recalled David never stated he was legally blind but conceded she never asked him about his eyesight.

Timothy Klock, a forensic investigator with the Oneida County Sheriff's Department described how he responds to a scene, dusts, processes and secures evidence. He explained he was involved in documenting evidence, taking photographs at the scene and later at the autopsy. He stated pictures were taken during and after the autopsy and a video taken of the autopsy was placed on a disc.

Inv. Klock stated Edith's body was disrobed and when rolled over, he observed huge bedsores. Klock explained he was an army medic and later worked in a nursing home and had never observed anything like the bedsores on Edith's body. He observed dark green gangrene which smelled horribly infected.

On cross-examination, Klock confirmed he did not observe evidence of rodent activity at the premises. He conceded in his experience bedsores are a common problem with the elderly and can develop quickly. He stated the bedsores he observed on Edith's body had taken well over a week to develop.

Anthony Matt, a funeral director in Utica for over thirty years was called out of order by David's counsel. He testified he was called to the Auchmoody residence after Edith's death in February, 2007. He stated he went inside and police officers were present. He was shown photographs of the interior of the residence and recognized the scenes depicted. He cannot recall if he saw or had any contact with Edith's body which was subsequently cremated. He explained there is no handling or cleaning up of a body if the decedent is to be cremated.

Mr. Matt testified that he had previously observed the condition of the residence when Edith's husband died at home in 2004. He observed that Mr. Auchmoody was in the bedroom and described him as very small, with a full beard and emaciated at the time of his death. He stated Edith told him her husband had been sick for a number of months and she was caring for him prior to his death.

Mr. Matt described Edith on that occasion in 2004 as very strong willed and she told him she hadn't cleaned the premises in months. He stated the house was in a similar condition in 2007 as it had been in 2004. He explained in 2004 when removing Mr. Auchmoody's body the doors could not be opened fully because of the clutter. Mr. Matt testified there was a small lane through the residence in 2004 and they had to lift his body over their shoulders to remove it from the house.

Dr. Scott Brehaut testified he is board certified in family practice, palliative and critical care. He has been in private practice in Oneida County since July, 2004. He estimated he treats eighty to ninety elder patients (55 and older) each week. He explained his office is in a nursing home and he frequently treats patients who are bedridden.

Dr. Brehaut testified he was consulted about Edith's death by the Oneida County [*4]Sheriff's Department four to eight weeks after she died and he also conferred with the District Attorney. He stated he was given a copy of the CD made during the autopsy and has received the autopsy photographs. He stated the purpose of a final autopsy report is to determine the underlying cause of death. He explained that a general inspection of the body was undertaken first, then the body opened and an internal examination made including observation of the general appearance, determination of the estimated weight and condition of the organs and assessment of the breakdown of tissue. He testified that skin breaks down from pressure or trauma resulting in ulcers. The doctor described different stages assigned to wounds from stage 0, which would be no breakdown of the skin, to stage 4 which would involve penetration into the muscle and bone.

Dr. Brehaut referred to the autopsy report and described an open wound on Edith's right shoulder blade. He also reviewed descriptions of ulcers on her hip, femur, back and groin. He said some of the lesions were crusted over. Certain wounds were growing bacteria and there was evidence of necrosis, or dead tissue. Dr. Brehaut described an ulcer on her right side which he indicated was stage 4, evidenced by an extensive disruption of skin and muscle.

Based upon his experience in treating ulcers, Dr. Brehaut stated Edith had been bedridden for weeks and it had been weeks before her death that she would have been able to sit up in her bed. The doctor explained an examination of the area of the right hip revealed a breakdown of the connective tissue so she was not able to lift her leg or get out of bed. Edith would not have been able to reposition herself for weeks due to her condition. He opined she would have been constantly in pain, always moaning, restless and somewhat delirious at times. Edith was incontinent and unable to clean herself which subsequently resulted in a breakdown of the skin and tissue surrounding the groin area.

The autopsy report received in evidence listed the cause of Edith's death as osteomyelitis and emaciation due to severe neglect. Edith's estimated weight at death was 50-60 lbs. with a height of 60 ½ inches. Severe decubitus ulcers were present along the back, buttocks and right hip, and there were lesions along the legs. The report cited positive gram stain for bacteria of the right femoral head. The report also noted evidence of extensive insect type injury and markings.

Dr. Brehaut testified that based upon the autopsy, besides the ulcerated sores Edith was in relatively good health from an internal standpoint. At age 89, she had less cardiac disease than most people. Dr. Brehaut asserted if she had been brought somewhere for treatment, her ulcers would have been cleaned, antibiotics would have been administered, she would have been placed on an appropriate mattress and she would have been constantly turned to avoid pressure on the same areas. He estimated the stage 4 ulcer would have taken 21-30 days to develop.

Dr. Brehaut confirmed Edith did not suffer any traumatic event. He opined that in the weeks before her death, she was not able to do much to care for herself. He stated the smell from her purulent wounds would have been horrendous.

Peter Healt, a sergeant with the Oneida County Sheriff's Department, testified his duties are to collect and store evidence at possible crime scenes. He stated he took photographs and a video of the Auchmoody residence, mainly the right side which had been occupied by Edith. He described the layout of the right side and Edith's bedroom, [*5]which was cluttered with mounds of trash, boxes and cloth diapers. He observed decomposing food, flies and corners of boxes chewed. All the windows were boarded up and there was no natural light. He described pictures he took of a bucket in Edith's bedroom which contained rags stained with blood and fecal matter. He described the area smelled strongly of trash and human waste.

Sgt. Healt described the evidence he collected at the residence, including an air mattress. He testified he followed David as he attempted to retrieve the nightshirt Edith was wearing at the time of her death but it was never located.

The Referee read deposition testimony into the record prior to the conclusion of his case regarding a power of attorney executed by Edith, and action taken by David pursuant to said power. Edith did not have a health care proxy at the time of her final illness and death. Testimony was also referenced regarding a recent injury and medical condition Edith suffered. In May, 2006, she was treated at Slocum Dickson for a fungal condition on her toenails. There was also testimony regarding an injury she sustained when she fell and twisted her knee, after which David brought her to Rome Memorial Hospital

George DeFazio, a Licensed Practical Nurse and OR technician testified he has known David since the mid 1990's through amateur radio. He stated he knew Edith and last saw her in early December, 2006, when he was picking up some equipment at the Auchmoody residence. He met Edith in the breeze way, gave her a Christmas card and had a conversation with her. He stated she had no trouble walking, that she carried herself with attitude and spoke her mind.

Mr. DeFazio related that he previously helped David perform house repairs and install insulation. He stated he had not entered Edith's portion of the residence in the past year. He described her residence in 2004-05 as cluttered and musty and stated she was a hoarder. He explained he made multiple offers to Edith in the past to help clean out the place but she refused his offers to assist.

David, age 66 at the time of the hearing, testified he has lived on Judd Road since the early 1960's. He is not currently employed and his last employment was in photography approximately eight to ten years ago. No one currently resides with him at the Judd Road residence and he receives SSI as his support. He stated he is a diabetic, legally blind at present and uses a cane. He explained that in his teenage years he had epilepsy and was diagnosed with Asperger's. He also has a deviated septum and stated he could not sense the musty smell George DeFazio testified to.

David stated his father Elton was in bed at the residence several months prior to his death in 2004 at age 92. During this period of time, David resided in a motor home in the driveway but sometime after Elton died, he moved into the apartment on the left side of the residence and Edith continued to live on the right side of the residence. David insisted Edith did not hoard but rather collected memories. He stated he attempted multiple times to discuss cleaning the house with her. He described Edith's mental state as very strong and stated she did not show her emotions.

David related that Edith died in her bedroom on air mattresses that were piled on each other. He stated there were sheets covering the mattresses and she was covered with blankets. He claimed that during December, 2006, Edith was "out and about" but that after Christmas she went to bed and wanted to stay in bed. David adamantly stated [*6]that Edith decided how to run the house and that he acceded to her wishes. He explained that Edith had cancelled the garbage pickup and told him to leave her house alone.

David claimed during the last couple months of Edith's life, he saw her three times a day at first, then during mid-afternoon and in the evening, and then she eventually started refusing to see him. Asked if he observed that she was soiling herself, David stated Edith asked him for sanitary napkins. He thought that she changed herself but stated she didn't want David to see her naked.

David testified that Edith did not have a doctor in 2006-07 because she didn't like them. He confirmed he had taken Edith to Slocum Dickson Urgent Care for treatment of her foot fungus in May 2006 and insisted that he tried to convince her to obtain medical treatment in 2007 but that she refused. He stated he called Eastern Star Home and she qualified to go there but she refused and stated she wanted to die in the same bed as her husband Elton had. He claimed he called a doctor and an ambulance and they responded that they couldn't provide assistance without her permission. David stated Edith told him not to allow anyone into the residence. David confirmed that he received a call from Chief Wolanin of the Town of Whitesboro Police Department in January, 2007. The Chief was responding to a request from a third party, Darlene Mialcarek, to check on the welfare of Edith. The incident report (Exhibit 142) revealed David stated everything was fine, to inform Darlene to mind her own business and not to call him.

During the last month of her life, David claimed Edith apparently slept all the time, although he stated she may have been pretending. He testified he did not hear her complain of pain, ask for a doctor or ask for help cleaning herself.

David explained Edith had worked for the Department of Motor Vehicles and had health insurance through Oneida County. He stated he called a county office in 2006 and was told Edith cancelled that insurance about a year after Elton died. He stated that the medical expenses for treatment of her knee injury were paid by Medicare and cash.

David testified that he had a conversation with Edith in February, 2007, wherein she told him to go to Rome Savings Bank and retrieve the contents of a safe deposit box at the bank. He claimed the bank had locked the box for non payment of the rental fee and that a Power of Attorney designation would be necessary for him to access the box. He stated he first discussed the Power of Attorney issue with Edith "a couple or three weeks before she died." David recalled that someone helped him prepare the Power of Attorney form. He claimed he was told by someone at BOCES that he should witness Edith sign the form and that he should return the form to have it notarized. Sometime in February before her death Edith signed the Power of Attorney which was introduced into evidence as Exhibit 139 (Durable General Power of Attorney, signed by Edith, and acknowledged on February 20, 2007). David stated he paid the fee owed on the safe deposit box at Rome Savings from funds Edith gave him and retrieved the contents of the box.

On cross-examination, David stated he was probably legally blind in 2007. He stated he sometimes wore magnifying lenses to read. He testified he had a driver's license in 2007 and barely drove a vehicle, claiming he drove at night so he could see the headlights. He stated he could sign his name "where someone held their finger." David [*7]testified Edith was "propped up in bed at an angle" when she signed the Power of Attorney and he did not ask her to sit up. He was not aware if Edith read the document.

David confirmed that Edith died in the main portion of the house, that he cleaned and changed her and then put her body on a cot on his side of the home. He admitted that he told the police officers that he and Edith watched television together the night before she passed away. David explained that Edith told him to clean her up when she died and that she did not complain at all before she died. David claimed that he had no way of knowing the last two months she was ill that Edith was dying, that he didn't know her bed clothes had blood on them because he couldn't see it, and that although there was testimony she would have been in terrible pain, she never complained. He stated there was a point his mother was incoherent. Asked why he couldn't make her comfortable in January/February, 2007, even though he got her to Urgent Care for a foot fungus in 2006, David replied, "she said do not touch anything."

David explained that near the end of her life, Edith would write him a check and he would pay the household bills as needed. Edith frequently wrote checks payable to David, he would endorse and cash the checks and pay expenses with the proceeds. He adamantly stated he never spent the funds on himself but was not able to explain how the proceeds of a number of checks were spent. David introduced an expense accounting (Exhibit 148) prepared from memory shortly before the hearing summarizing monies spent to pay bills as Edith requested.

On re-cross, David was asked about certain of Edith's Bank of America checks (part of Exhibit 138 and Exhibit 143). David confirmed that Edith had cancelled the garbage service. David was asked if he had any part in the issuance of check No.384 and he replied that he filled the check in and that Edith wanted the bill paid. The check is payable to Marshall Przyluke Inc. dated April 3, 2006 in the amount of $279.10 with a notation - 1 year garbage collection Judd 5589. Asked to verify this was payment for one year David replied, "it says so, but what year?"

David was shown check #1289 payable in the amount of $1,935.00 and dated February 15, 2007. David stated he filled out the check and Edith signed it. Asked if one week prior to her death she was telling him what to do, David replied"possibly" and confirmed they were having conversations. David was asked about a check payable to cash (check #1482) in the amount of $1,600.00 and dated February 21, 2007, the day before Edith's death. That check was signed by David as Power of Attorney and contained a notation for house repairs. In response as to whether Edith told him how to spend these funds, David replied, "I spent nothing but according to what she said."

David further testified that he would cash the checks Edith had written, proceed to shop around to get a price, and then pay cash for all purchases. Asked to confirm that from January, 2006 until Edith's death about $45,000.00 was spent in his name, David replied "it can all be proved."

After the conclusion of the hearing, the Court directed the parties to submit proposed findings of fact and memoranda addressing the relevant issues raised during the hearing. Submissions were received by the Referee in support of his Objection and by David's counsel in opposition thereto and have been reviewed by the Court. The Chief Fiscal Officer, as petitioner, chose not to make any submissions.

It is well established law in New York that one who takes the life of another should not be permitted to profit from his own wrong and shall be barred from inheriting from the person [*8]slain. See Riggs v. Palmer, 115 NY 506. Numerous cases have reaffirmed the principle that forfeiture will apply to one implicated in an intentional felonious crime. See Matter of Estate of Covert, 97 NY2d 68.

The forfeiture doctrine has been expanded to apply to a party who sought to benefit from the decedent's death but has recklessly caused said death. See Matter of Estate of Sparks, 172 Misc 642 (first degree manslaughter); Matter of Estate of Wells, 76 Misc 2d 458 (second degree of manslaughter). Forfeiture does not arise if the party was convicted of or found to have committed involuntary manslaughter such as Criminally Negligent Homicide.

In Matter of Wells, supra, the Court determined that if one were acquitted of any crime or pleaded guilty or were convicted of a crime which did not constitute forfeiture, after a hearing the Court nevertheless could, because of the difference of the burden in proof in a civil proceeding, find that the elements of forfeiture exist. In the instant case, David pled guilty to Criminally Negligent Homicide, a Class E felony although he was indicted on a count of Second Degree Homicide, a Class C felony. The distinguishing factor between the two felonies is that the criminally negligent offender is not aware of the risk created and is not consciously disregarding a duty whereas the offender guilty of second degree Manslaughter is aware of the proscribed risk and consciously disregards it.

The parties agree in their Post trial submissions that the ground for a forfeiture of David's inheritance would be if it is established that David recklessly caused Edith's death. Section 15.05(3) of the Penal Law defines recklessly as follows:

"A person acts recklessly with respect to a result or to a circumstance describedby a statute defining an offense when he is aware of and consciously disregards asubstantial and unjustifiable risk that such result will occur or that suchcircumstance exists. The risk must be of such nature and degree that disregard

thereof constitutes a gross deviation from the standard of conduct that a

reasonable person would observe in the situation".

The Referee asserts the proof presented establishes by a preponderance of the evidence that reckless acts and/or omissions on David's part led to Edith's death. He argues that the evidence presented established that David had a duty as Edith's care giver to provide her with the proper care and that his actions or failures to take appropriate action caused Edith's death. The Referee submits the evidence established that Edith was bedridden for a substantial period of time prior to her death and that David's continued contact with his mother during this time provided him the opportunity to observe her deteriorating physical condition.

The Referee asserts he demonstrated that David cleaned Edith's body after death, changed her soiled clothing, repositioned the body on his side of the residence and placed copies of Ladies Home Journal and Family Circle near the cot on which the body was arranged. The Referee contends these actions on David's part established his awareness and knowledge of the condition of her body and her living quarters. It is submitted the evidence established that he was or should have been aware of his mother's condition in the weeks prior to her death and his failure to take adequate or any action in light of the conditions presented constituted reckless conduct on his part. [*9]

David asserts that the Referee has not shown that the risk of osteomyelitis and emaciation was obvious to David. He asserts it was not proven he knew the danger of any of Edith's bedsores but only this his mother was "slipping away". He states Edith was a strong-willed independent woman who desired to keep to herself. He claims that due to his sensory deprivation (legal blindness, deviated septum and Asperger's) he could not observe or appreciate the risk posed by the bedsores. He states Edith was always covered by clothing or blankets and that she would not allow him to assist her in cleaning or toileting herself. David submits there was no credible proof establishing that Edith's ulcers or bloody clothes were revealed to him.

David argues that the proof revealed his actions were justified by Edith's clear and unequivocal expression of her wishes. He states that Edith clearly wanted to avoid doctors and she wanted to die at home in the same bed as Elton. David's position was that he respected his mother's wishes and heeded her orders to be left alone. He argues that the fact he rearranged Edith's body after death does not indicate his prior conduct was reckless. After her death, he submits he was freed of her demand to be left alone and he removed her body to a more presentable location, again following Edith's wishes expressed to him before her death. Finally, David discounts the testimony elicited regarding the checks he had Edith make payable to him which he cashed. He asserts he used his mother's money to pay bills, taxes and utilities as she directed and claims that he lost substantial support provided by his mother's pension and benefits as a result of her death.

The Court has heard the witnesses and had the opportunity to review the exhibits introduced into evidence. Based upon the entire record, the Court finds the Referee has established by a preponderance of the credible evidence that the reckless acts and/or omissions on David's part caused Edith's death.

Initially the Court notes the Referee entered the Record of Conviction Oneida County Court (Exhibit 134) which established David's conviction by plea to a count of Criminally Negligent Homicide in the death of Edith. Section 125.10 of the Penal Law states as follows:

"A person is guilty of Criminally Negligent Homicide when, with CriminalNegligence, he causes the death of another person".

The Court, based upon David's conviction, finds David's acts and/or failures to act caused Edith's death.

The Court further finds David assumed an affirmative duty to care for Edith when he turned away outside assistance on January 22, 2007. (See Exhibit 142 - Incident Report Whitestown Police Department).

Analyzing whether David was aware of the risk posed by Edith's medical condition during her final illness, the Court finds credible and persuasive the testimony of Dr. Brehaut. The doctor described and the Court reviewed the autopsy report and photographs. Dr. Brehaut explained that the decubitus ulcers on her hip caused breakdown of the connective tissue, resulting in a loss of function of her leg. Edith would have been completely bedridden for weeks prior to her death. He opined she was unable to sit up in bed and reposition herself, so the most serious wounds were from constant pressure on her right side. The doctor stated she would have been incontinent, unable to clean herself, and in constant pain. David's assertions that he was not aware of the extent of his mother's condition and the risk posed thereby because he saw nothing, [*10]heard nothing and smelled nothing are found by the Court to be not credible.

In light of the evidence adduced that in 2006 Edith asked to be taken for treatment of a foot fungus and she also received hospital treatment for a sprained knee, it strains credibility that given the nature and extent of her condition she never complained or requested any assistance as asserted by David. The evidence demonstrated that David was constantly in close contact with his mother in the weeks immediately prior to her death. According to David, she continued to sign checks and direct him which bills to pay. He also assisted her while she executed a Power of Attorney a short time before death. David testified he provided his mother with protein drinks regularly.

The Court agrees with the Referee that this was not a situation of an elderly person passing away from malnutrition or from general frailty. The risk here was the unattended decubitus ulcers and Edith's inability to get out of bed or even reposition herself would adversely affect her health. The resulting breakdown of her tissues caused the infection and her subsequent death. The Court finds based upon the evidence as a whole that David's total disregard of the risk posed by Edith's condition constituted such a gross deviation from the standard of conduct that a reasonable person would observe in such a situation so as to constitute reckless conduct in the circumstances.

The Court, having made its determination that David's reckless conduct caused Edith's death, it is hereby ORDERED that Referee's Objection 3A. is SUSTAINED.

In light of the Court's Decision sustaining Referee's Objection 3A., the petitioner is hereby ORDERED to submit a revised Accounting in accordance with this Decision. A Court conference concerning Referee's Objection 3B. will be scheduled forthwith.

In accordance with the Court's prior Decision dated November 4, 2011, the Referee is directed to submit a statement of his fees and disbursements to date for approval by the Court.

Dated: August 30, 2013ENTER:

Utica, New York

______________________________

HON. LOUIS P. GIGLIOTTI, SURROGATE