Matter of Streif

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[*1] Matter of Streif 2014 NY Slip Op 51166(U) Decided on July 28, 2014 Sur Ct, Erie County Howe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2014
Sur Ct, Erie County

In the Matter of the Application of Melissa Miller, as Executrix of the Estate of Charles Streif, Deceased, for leave to allocate and distribute net settlement proceeds derived from the causes of action arising out of the conscious pain and suffering and wrongful death of said decedent and to judicially settle her account relating to the proceeds thereof.



2011-1171/D & /E



LAW OFFICES OF WEITZ & LUXENBERG, P.C.

Attorneys for the Executrix Melissa Miller

[in the Wrongful Death proceedings]

David Kaufman, Esq. and Robert J. Pierce, Esq., of Counsel

ROBERT J. PIERCE, ESQ.

Attorney for the Executrix Melissa Miller

[in the Declaration of Death proceeding]

EMILIO COLAIACOVO, ESQ. Guardian ad Litem for Constance Ann Streif, Whereabouts Unknown

HON. ERIC T. SCHNEIDERMAN, ESQ., NYS ATTORNEY GENERAL

Cited for Whereabouts Unknown

William D. Maldovan, Esq., of Counsel
Barbara Howe, J.

Decedent died at age 71 on March 6, 2011, and his Will dated February 13, 2007 was thereafter admitted to probate. His daughter, Melissa Miller [hereafter, Miller], was appointed executrix of the estate.



Decedent's Will left the bulk of his estate to Miller, with a provision included for a grandson, Bailey Miller. The Will expressly disinherited his daughters Barbara Streif and Constance Ann Streif [hereafter, Constance]. As to Constance, the disinheriting provision, ARTICLE NINTH, stated the following (inter alia):

"Furthermore, I have not received any communications from CONSTANCE ANN STREIF since 1981 despite my best efforts to locate her and I believe she may very well be deceased."[FN1]

On October 15, 2010, four months before his death, decedent was diagnosed with mesothelioma as a result of exposure to asbestos. Litigation has been maintained by the estate to recover for decedent's conscious pain and suffering and for his wrongful death.

In 2013, two compromise petitions were resolved before me without objection. Pursuant to those petitions, initial litigation settlement proceeds were allocated 90% to conscious pain and suffering, the net amount of which passed via the estate to Miller. Ten percent of the proceeds were allocated to wrongful death, and the net amount passed, pursuant to each uncontested compromise petition proposal, to decedent's three distributees, Miller, Barbara Streif and Constance, one-third going to each. Because Constance's whereabouts were unknown, her one-third [*2]share of that 10% was deposited with the Erie County Comptroller.

Pending now before me are three separate petitions. Two of those are new compromise and settlement petitions. Each seeks allocation and distribution of current settlement proceeds, the settlement amounts having previously been approved by Supreme Court, New York County. In each proceeding, a guardian ad litem has been appointed to represent the interests of Constance, whose whereabouts remain unknown but who is a distributee of decedent's.

The third petition is one brought by the estate seeking a declaration from this Court that:

"CONSTANCE ANN STREIF, a daughter of the decedent, is deceased and her share of the net settlement sums authorized, approved and allocated to the wrongful death of decedent in the above referenced matters in past and future causes of action authorized, approved and so allocated by the Court be distributed equally between MELISSA MILLER and BARBARA J. STREIF, the surviving children of decedent; ordering any funds held in escrow on behalf of CONSTANCE ANN STREIF based upon such past causes of action be released in equal shares to said MELISSA MILLER and BARBARA J. STREIF, and directing such other and further relief as the Court deems just and equitable."[FN2]

All three petitions were returnable before me on July 1, 2014. At that time, there were no objections to any of the relief sought in any of the three petitions. The guardian ad litem filed his report and recommendations, including the following:

"In both prior report and recommendations to the Court, your deponent has detailed the research performed. Constance Streif has been missing since October 1, 1992. She was 22 years old and was last seen in Harker Heights, Texas. In the initial Guardian ad Litem report, your deponent referenced the Charley Project' website that is dedicated to missing people. A page on this website is and remains dedicated to Constance Ann [*3]Streif. In the second Guardian ad litem report, your deponent noted that the Texas Department of Public Safety maintains a directory for individuals missing. Your deponent's ward is included in the directory. Your deponent has reviewed the supplemental information provided by the Petition and reviewed the prior research provided. Nothing has been updated or altered that has changed the current status on your deponent's [ward's] whereabouts.

In considering the relief that is requested, with respect to the [compromise] Petition[s], your deponent does not object to the relief requested, with the exception that any amount otherwise entitled to your deponent's ward should be deposited with the office of unclaimed funds administered by the New York State Comptroller as opposed to the Erie County Comptroller.

In considering the relief requested in the application to declare Constance Streif deceased, your deponent does not object that his ward be declared dead, in absence of anything shown or found to the contrary, as of October 1, 1982" (June 30, 2014 Report and Recommendation, at pghs 9 through 11, emphasis added).

(A)

THE DECLARATION OF DEATH PETITION

Miller alleges, "upon information and belief", that decedent's wife, Brenda,[FN3] had "made an exhaustive search to locate Constance after Constance left . . . home in or around 1981." Miller references correspondence over the years between Brenda and entities such as (1) the Salvation Army Missing Persons Bureau, (2) the National Missing Persons Report, (3) Search Reports, Inc., Central Registry of the Missing, and (4) the Missing Persons Bureau in Texas, all of which failed to yield a [*4]positive result as to Constance's whereabouts.

In Matter of Ida Seals, 42 Misc 3d 1235(A) [dec. 3/10/2014], I was confronted with an application strikingly similar to the one before me now. There, decedent had two sons, Frank and George. George predeceased his mother in 2005, and Frank had moved to Texas in 1980. Frank wrote to decedent from Texas in March, 1980, telling her where he was living and indicating that she could tell two specific people where he was, but he also asked her to "tell them to keep it to themselves, OK?" There was no known contact by, from or with Frank after that. Ida Seals' 1993 Will left her entire estate equally to "such of my sons as survive me", or to "the survivor" of them. And, her 2010 obituary stated that she had been "preceded in death by her husband, Barney Seals", and that "[s]he is the mother of Frank D. Thomas and the late[ ] George R. Thomas."

The executor of Seals' estate, a niece, brought an application seeking a declaration from this Court that decedent's son, Frank, was deceased effective April 1, 1983. This was alleged on the belief of the executor "and all of Frank's family and friends . . . that he died in March or early April, 1980."

In my decision, I pointed out that:

"The estate's application has been brought pursuant to EPTL 2-1.7(a), dealing with the Presumption of death from absence; effect of exposure to specific peril'. EPTL 2-1.7(a) provides as follows:

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 on such earlier date as clear and convincing evidence establishes is the most probable date of death' (emphasis added).



Margaret Turano, in her commentary to the statute, notes that EPTL 2-1.7 is the successor to Decedents' Estate Law §80-a, which itself codified a holding of our [*5]Court of Appeals in Butler v. Mutual Life Ins. Co., 225 NY 197 [1919] (see Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, Estates, Powers and Trusts Law §2-1.7 [2012 ed] at 145). However, the time period within which the presumption may be invoked has been reduced from seven years under Butler to three years under our current statute.

In Butler, the Court of Appeals detailed the principles and considerations involved in a proceeding of this nature:

The law contains the general presumption that a person who has been continuously absent from his home or place of residence, and unheard from or of by those who, if he had been alive, would naturally have heard of him, through the period of seven years, is dead. The presumption does not arise, however, when there exist circumstances or facts which reasonably account for his not being heard of, or his absence and abstention from communication are reasonably explained without assuming his death, or where diligent inquiry as to whether he is alive or dead has not been made. . . . (Butler v. Mutual Life Ins. Co., supra, at 203, emphasis added).' "

In Seals, I concluded that there was no proof that a diligent search for decedent's son, Frank, had been made within the meaning of the statute. That fact, coupled with other circumstances in the record which suggested that (a) Frank had sought to keep his whereabouts relatively secret after he moved to Texas in 1980, and (b) that decedent's testamentary plan as evinced by her 1993 Will indicated that she did not believe, as of that date, that Frank was dead, led me to deny the petition to declare Frank dead.[FN4]

Here, I reach the same conclusion as I did in Seals, namely, that there is no legally sufficient proof before me to warrant a declaration that Constance "is deceased and that her death occurred in or about October 1, 1982".

Although Constance's mother wrote to various missing persons agencies in the 1980s and 1990s, the record shows that this largely had the effect of posting Constance's name, photograph and identifying characteristics on public internet websites and other "bulletin boards". Any negative results from this type of search is inherently ambiguous, as correspondence back to Brenda in 1988 made clear:

"Some states simply do not use the computer system as it should be used. . . . So please take this [non-result] bit of information at face value: the system does not have any information. Period.

• • •

Inactivity in Social Security could mean many things or nothing at all. If your daughter was not working but being a stay-at-home housewife there would be no income record" (Dec. 9, 1988 letter from Search Reports, Inc., Central Registry of the Missing, emphasis added).



Without in any way denigrating what Constance's family did after 1982, the record indicates that only data search efforts were made that is, search registries were contacted and they did such record checks as were then available to them. I can find no evidence of any other efforts to locate Constance.

In 2007, when decedent made out his Will, he left a contingent bequest to Constance, despite not having heard from her since 1981. Although, as he stated in the Will, he believed that Constance "may very well be dead" (emphasis added), he was not so certain about that as to exclude her from a contingent bequest.

Under all the circumstances, I conclude that the petition to declare that Constance is deceased, and that she died on or about October 1, 1982, must be, and it hereby is, denied and the petition is dismissed.

(B)

THE COMPROMISE PETITIONS

Ten percent of the net litigation settlement proceeds now before me is being allocated without objection to wrongful death. I find such allocation appropriate under the facts and circumstances of this case.

Distribution of that 10% amount has been proposed to be made equally among decedent's three distributees, his daughters Miller, Barbara Streif, and Constance. That, too, is not objected to in the two compromise matters.

However, whether to approve a proposed distribution is always a matter for the Court's informed review of the facts of the case:

"[T]he Surrogate is vested with discretion and with equitable powers as to the proportional allocation of wrongful death proceeds" (Matter of Acquafredda, 189 AD2d 504, 506 [1993]; see also Matter of Lodovichetti, Misc 3d 1140 [2007]).

Here, I conclude that the proposed distribution cannot be approved.

As our Appellate Division succinctly pointed out in Dawson v. Langner, 106 AD2d 152, 153 [1985]):

"Significantly, a wrongful death action is brought not on behalf of the decedent's estate, but on behalf of the decedent's distributees, and the damages recoverable are not compensation for the injury sustained by the decedent, but for injuries suffered by the distributees as a result of the decedent's death (George v. Mt. Sinai Hosp., 47 NY2d 170, 176)" (emphasis added; see also, Heslin v. County of Greene, 14 NY3d 67, 75 [2010] and Gimplin v. Kubiac, 2012 NY Misc LEXIS 5508, 2012 NY Slip Op 32895U [dec. 11/28/2012]).

In a wrongful death action, generally "an award of damages is limited to fair and just compensation for the pecuniary injuries resulting from decedent's death to the persons for whose benefit the action is brought" (Klos v. New York City Trans. Auth., 240 AD2d 635, 637 [1997]; see also, Hyung Kee Lee v. New York Hosp. Queens, ____ AD3d ____ [dec. June 11, 2014]). In part, in an appropriate case, the compensable pecuniary losses may include "the nurture, care and guidance provided by the decedent" (Rose v. Conte, 107 AD3d 481, 484 [2013], citing Gonzalez v. New York City Housing Auth., 77 NY2d 663, 668 [1991]). And, an award for wrongful death may be made even to "a self-supporting adult" (Bennett v. Henry, 39 AD3d 575, [*6]576 [2007]).

Here, although Constance is a distributee of decedent's, the record conclusively demonstrates that she suffered no pecuniary loss as a result of his wrongful death.

Born in January, 1960, Constance was adopted by decedent and his wife some time thereafter. In the fall of 1982, Constance went to Texas to visit her sister, Barbara. Since that date, Constance has had no communication with her family, and she has not depended upon, or sought, financial assistance from decedent. For over 31 years, no support has been claimed from, or given by, decedent to her. Thus, there is no pecuniary loss to Constance in the traditional, monetary sense stemming from decedent's death.

Similarly, given the 30 years or so which passed since their last known communication, there is no basis to find that Constance suffered a loss of nurture or guidance as a result of decedent's wrongful death.

So viewed, I conclude that Constance is not entitled to any share of the wrongful death proceeds, and I decline to approve any allocation to her in either of these two pending compromise petitions. Furthermore, had the full circumstances now in the record before me been made known during the pendency of the two 2013 compromise proceedings, I would not have approved any allocation of wrongful death proceeds to Constance at that time.

(C)

For the reasons previously stated, I hereby grant the following relief:

1. The petition to declare Constance dead, effective October 1, 2012, is hereby denied and the petition is dismissed;

2. The relief sought in the compromise petition [No.2011-1171/D] involving settlement proceeds approved by Supreme Court, New York County, on November 2, 2013 [$180,456.82], and in the compromise petition [#2011-1171/E] involving settlement proceeds approved by Supreme Court, New York County, on January 22, 2014 [$266,269.59], is hereby

(a) approved as to the proposed allocation of 90% to conscious pain and suffering and 10% to wrongful death, and

(b) approved as to distribution of the wrongful death proceeds under each petition with one-half of such proceeds going to Miller, one-half going to Barbara Streif, and nothing going to Constance;

3. The decrees in the prior compromise proceedings herein #2011-1171/B and #2011-1171/C are each hereby amended to delete any allocation of wrongful death proceeds to Constance and to provide that the wrongful death proceeds are allocated under each one-half to Miller and one-half to Barbara Streif.

This decision shall constitute the Order of this Court and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

July 28, 2014

HON. BARBARA HOWE

Surrogate Judge Footnotes

Footnote 1:Despite ARTICLE NINTH, decedent did, in fact, provide in ARTICLE FIFTH that Constance, Barbara, and others, would receive his residuary estate if Miller and Bailey Miller predeceased him.

Footnote 2:Relief set out in the May 19, 2014 citation issued to Constance and to the New York State Attorney General [on behalf of a person whose whereabouts are unknown (see SCPA 316)].

Footnote 3:Brenda Streif died on August 26, 2004.

Footnote 4:Interestingly, my Seals decision was published by the State Reporter, shortly after which it was the subject of a New York Law Journal story [John Caher, Surrogate Rules Missing Man Can't Be Presumed Dead, NYLJ, Mar. 20, 2014, at 1]. As a result of that story, a New York City private investigation firm took an interest in the case, and within days had located decedent's son, Frank, who was alive and still residing in Texas. The estate attorney was notified to this effect, and, three weeks later, he reported to this Court that Frank's current existence had been conclusively established, "even though Frank apparently prefers to act low-key and continue to keep his identity hidden."