Matter of Diaz
Annotate this CaseDecided on September 28, 2004
Surrogate's Court, Nassau County
In the Matter of the Application of Michele Lippa Gartner, Public Administrator of Nassau County, for Letters of Temporary Administration and Letters of Administration concerning the Estate of RAFAEL ARTURO DIAZ, Absentee and Alleged Deceased, and for a decree judicially declaring that the above-named absentee is deceased, pursuant to New York Estates, Powers and Trusts Law §2-1.7(b), together with other and further relief.
330585
Brosnan & Hegler, LLPAttorneys for Public Administrator
1415 Kellum Place, Suite 203Nassau County
Garden City, New York 11530
Susan Bacigalupo, Esq.McCoyd, Parkas & Ronan, LLPGuardian ad Litem
Penthouse Suite 401Rafael Arturo Diaz
1100 Franklin Avenue
Garden City, New York 11530
John B. Riordan, J.
This is a proceeding pursuant to EPTL 2-1.7 to declare Rafael Arturo Diaz dead as a result of exposure to a specific peril. The petitioner is the Public Administrator. A guardian ad litem was appointed to represent the absentee.
The absentee, a citizen of Guatemala, was last heard from in September of 2001. He was thirty-six years old, married to Yolanda Lorena Brancamonte and the father of four children.
A hearing was held on March 3, 2004. The following people testified: Sister Constance Kelly and Annette Nystrom. The spouse of the absentee was unavailable to testify at the hearing as she is employed in Virginia and allegedly was afraid that she would lose her job if she missed a day of work to testify at the hearing. Two of her affidavits were admitted into evidence.
The testimony and affidavits establish the following facts. On or about August of 2001, Mr. Diaz left Guatemala and journeyed to the United States in search of employment. His original destination was Virginia, where he had resided previously. While on his way to Virginia, however, he was apparently advised that employment opportunities were better in New York. Mr. Diaz purportedly called his wife every Friday to let her know where he was. On or about either September 7 or September 10, 2001, the absentee telephoned his wife and told her that he had secured employment at the "Twin Towers," with his employment scheduled to commence on September 11, 2001. The absentee was not seen or heard from after that date. It is, of course, well known that the World Trade Center in lower Manhattan was commonly referred to as the Twin Towers.
Mrs. Diaz traveled to New York in October of 2001 to look for her husband. She met with Sister Constance Kelly who works at St. Peter's Church as part of a social outreach program. Sister Kelly helps Spanish-speaking people with problems they may encounter in the United States. [*2]
According to Sister Kelly, Mrs. Diaz contacted her office in October of 2001. She was trying to locate her husband whom she believed to have been employed as a maintenance worker at the World Trade Center. Mrs. Diaz did not know the name of her husband's employer. Sister Kelly advised Mrs. Diaz to go to the Chelsea Piers to start her search for Mr. Diaz.
In an affidavit entitled "Affidavit by Person with Personal Knowledge for Issuance of Death Certificate", Mrs. Diaz averred that she visited the local police stations to make inquiries about her husband. She was given a medical examiner identification number as well as a victim identification number. Further, a Spanish-speaking woman from the Red Cross took Mrs. Diaz around to try to locate her husband.
As a result of Mrs. Diaz' inquiries, she was issued a check in the amount of $10,000 from the September 11th Fund and she also received correspondence form the World Trade Center Relief Fund.
Annette Nystrom, a paralegal employed by Franchina and Giordano, testified as to her meeting with Mrs. Diaz. She testified that Mrs. Diaz characterized her relationship with her husband and children as loving and that the reason Mr. Diaz came to the United States was to make money to pay the medical bills of her son who suffers from cancer. Mrs. Diaz informed Ms. Nystrom that the reason it took her so long to come to New York to look for her husband was because she lacked the funds and had to sell personal property to pay for the trip.
In an affidavit dated February 23, 2004, Mrs. Diaz stated that she has not heard from the absentee since the one phone call in early September of 2001. She further averred that her husband was a devoted father and loving husband and that he never took unplanned trips and "would never disappear for any period of time without calling us".
The guardian ad litem prepared a report in which she consented to the relief requested herein. In the alternative, the guardian ad litem requests that Rafael Arturo Diaz be declared dead as of September 11, 2004.
After the hearing on March 3, 2004, the matter was adjourned to allow the petitioner time to submit DNA evidence to the medical examiners office. No match was obtained. [FN1]
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 of such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death". Further, EPTL 2-1.7(b) provides "[t]he fact that such person was exposed to a specific peril of death may be a sufficient basis for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced".
The petitioner has alleged that the absentee died as a result of specific peril - the attack on the World Trade Center - and seeks to have the absentee declared dead as of September 11, 2001.
To prevail, the petitioner must show "more than the mere fact of absence during the period" as "no presumption of death from disappearance will be indulged...except in those cases where the [*3]irresistible inference from the facts demonstrate that death occurred in some clearly identified disaster" (5th Report of Comm on Estates, 1966 NY Legis Doc No. 19, at 184).
Where a party alleges death due to specific peril, "more conclusive evidence [will] be required to support the finding of death..."(Matter of Brevoort, 190 Misc 328, 333 [1947]). Moreover, "an important factor in a proceeding of this type is proof or exposure to a catastrophe or peril..." and where a body is not located, "there must be reliable evidence that the absentee was in the place destroyed at the moment the disaster took place" (Matter of Lafuente, 191 Misc 2d 577, 583 [2002]).
The guardian ad litem cites Matter of Lafuente (191 Misc2d 577 [2002]) in support of her position that the absentee be declared dead as a result of exposure to a specific peril. The facts of that case are similar to the instant proceeding in that the absentee disappeared on September 11, 2001 and it was alleged that the absentee died as a result of the attacks on the World Trade Center. The facts in Lafuente were, however, much more compelling as it was established that the absentee, a resident of Poughkeepsie who worked in downtown Manhattan, took a train into the city on that day. The evidence showed that the absentee frequently attended technical conferences and that the Risk Waters Group held a conference in the World Trade Center on September 11, 2001 which was the type of conference the absentee would normally attend. Further, the absentee was overheard remarking to a fellow customer at a local delicatessen that he was planning on attending a conference at the World Trade Center. The court found that "[b]y using syllogistic reasoning and incorporating compelling circumstantial evidence into this deductive scheme an affirmative determination is warranted" and declared the absentee dead as of September 11, 2001 (Matter of Lafuente, 191 Misc2d 577, 579 [2002]).
In contrast, in the instant proceeding, the only testimony is that of the absentee's spouse who said that her husband told her he had gotten a job at the Twin Towers and that she had not heard from him since early September of 2001. There was no independent testimony from anyone who could place the absentee in the area. For all of these reasons, the application to declare the absentee dead as a result of exposure to a specific peril on September 11, 2001 is denied without prejudice to renew in the event that the chief medical officer obtains a match for Mr. Diaz' DNA. Further, the petitioner has failed to establish by clear and convincing evidence, that even absent exposure to specific peril, an earlier date of death should be established as the most probable date of death [EPTL 2-1.7(a)].
The petitioner is not without recourse, however, as she is entitled to rely on the presumption of death after a three year absence. "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 Misc2d 629 [1998]). The petitioner has demonstrated that the absentee came to the United States to make money to pay for the medical bills for his son and that his relationship with his family was stable and loving. The petitioner has also shown that the absentee maintained contact with his family which ended abruptly in September of 2001 and that he has not been heard of or from since that time. The absentee's spouse made a diligent search for the absentee which was fruitless. For all of these reasons, the court declares Rafael Arturo Diaz dead as of September 11, 2004, or three [*4]years after his disappearance.
This constitutes the decision and order of the court.
Dated:September 28 , 2004
JOHN B. RIORDAN
Judge of the
Surrogate's Court
Footnotes
Footnote 1:As of September 2004, it was reported that the medical examiners office had identified only 1,568 victims. Officials will allegedly continue to try and identify the remains of 1,178 other victims (Saul, Fight Continues to Resolve Claims, Newsday, September 12, 2004).
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