Matter of Simpson

[*1] Matter of Simpson 2004 NY Slip Op 51571(U) Decided on December 7, 2004 Surrogate's Court, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2004
Surrogate's Court, Bronx County

IN THE MATTER OF THE ESTATE OF RAY A. SIMPSON, an Absentee, Allegedly Deceased.



80-A/2001

Lee L. Holzman, J.

In this proceeding to declare the absentee dead pursuant to EPTL 2-1.7, a hearing was held before the court in which the guardian ad litem for the absentee participated.

The proof adduced established that the absentee, a corrections officer, began having mental problems during the summer of 1994 and that he eventually was hospitalized as a result of these problems for three weeks. He continued to live in the home he had first shared with his mother and subsequently with his wife as well upon their marriage on May 26, 1990. On January 17, 1995, the couple had a two-year-old son and were expecting another child. Both the absentee's wife and mother testified that the absentee did not work from the time of his hospitalization until January 16, 1995 and that, on that date, he returned to work for the first time in months. On January 17, 1995, the absentee was not scheduled to work. He left the house early and never returned. His wife testified that she thought he had gone out to buy a newspaper and get gas for his car. Later that day the police came to the door and showed the spouse a picture of the absentee's car which had been abandoned on the Bronx Whitestone Bridge and told her that an eyewitness had reported to a toll collector that a person had been seen leaping from the bridge. Thereafter, despite newspaper articles and fliers distributed by the family there were no reports of the absentee being sighted nor was his body ever found.

A few days after her husband's disappearance, the spouse found a note written by the absentee near his basement office. The note reveals the writer to be a distraught individual who, while evidencing concern for his family, feels that they will be better off without him. The note indicates that the writer is still hearing voices and believes he is crazy. It concludes in extra large writing: "I've failed you all... I'm no good to live."

The absentee left the house with only the clothes he was wearing and that there has been no financial activity with regard to any of his assets since the date of his disappearance. In the almost ten years which have elapsed from the absentee's disappearance, no one in the family has [*2]heard from him. The absentee's mother testified that never before had the absentee failed to be in regular communication with her. The authorities informed the family that it was not surprising that the absentee's body was never found because of the prevailing currents under the bridge.

In relevant part, EPTL 2-1.7 provides as follows :

(a) 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, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or such earlier date as clear and convincing evidence establishes is the most probable date of death

(b) The 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.

Tthe court finds that the absentee disappeared on January 17, 1995, and that, despite a diligent search, there is no explanation for his absence other than death. Furthermore, the court finds the evidence clear and convincing with respect to the specific peril alleged, to wit, his plunging into water from a great height on January 17, 1995, warrants the conclusion that the date of the absentee's disappearance was the date of his death (see Matter of Cosentino, 177 Misc 2d 629 and cases cited therein). Accordingly, a decree may be settled declaring the absentee dead as of January 17, 1995.

SURROGATE