Matter of Lowenberg
Annotate this CaseDecided on November 9, 2016
Surrogate's Court, Queens County
In the Matter of Probate Proceeding, Will of Deena P. Lowenberg, a/k/a DEENA LOWENBERG, a/k/a DEENA PEARL LOWENBERG, a/k/a DEENA PEARL, Deceased.
2016-1256
Robert M. Freedman, Esq.
Attorney for Respondent
Sophia M. Tsantes, Esq.
Attorney for Petitioner
Peter J. Kelly, J.
In this probate proceeding, the Respondent Yael Lowenberg, a daughter of the Decedent, moves, pre-objection, to dismiss this proceeding on the claimed basis that this court lacks subject matter jurisdiction to probate the testamentary instrument in question, since the Decedent was not a New York domiciliary at the time of her death (See, SCPA §204).
The Respondent has not identified in the moving papers or memorandum of law the procedural posture of her motion. In particular, there is no indication whether dismissal is being sought pursuant to CPLR 3211 or CPLR 3212. Although a motion for summary judgment is not permitted until joinder of issue (CPLR 3212[a]), where the parties chart their own procedural course the court can treat the motion as if issue had been joined (See, Roche v Claverack Coop. Ins. Co., 59 AD3d 914). Here it is apparent from the parties' submission of affidavits and documentary evidence in support of and in opposition to the motion that they have elected to proceed as if this were a motion for summary judgment.
Many of the relevant background facts and circumstances are undisputed. The Decedent was a domiciliary of Maryland from 1992 until mid-January 2016 where she lived with her husband and children for the majority of that time. On November 24, 2015, the Decedent entered into a marital settlement agreement and soon thereafter was granted an absolute divorce. On the same day she signed the marital settlement, the Decedent executed the instrument that has been offered for probate. The propounded instrument was drafted and executed in Maryland and states therein that the Decedent was, at the [*2]time, "of Baltimore County, State of Maryland". When the instrument was executed, the Decedent had been the resident of a rehabilitation facility in Maryland for the better part of 2015. On January 15, 2016, with the assistance of the Petitioner, her brother, the Decedent was transferred from the facility in Maryland to another nursing and rehabilitation in Queens, New York and she remained there until her death on March 6, 2016.
Summary judgment may be granted only where it is clear that no triable issue of material fact exists (See, Alvarez v Prospect Hosp., 68 NY2d 320; Phillips v Joseph Kantor & Co., 31 NY2d 307). To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, aff'd 49 NY2d 924). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Matter of Newman, 14 AD3d 567). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied (Robinson v Strong Memorial Hosp., 98 AD2d 976).
The law applicable to this motion is settled and not disputed by the parties. Section 103[15] of the Surrogate's Court Procedure Act codifies the common law definition of domicile as a "fixed, permanent and principal home to which a person wherever temporally located always intends to return" (See, Laufer v Hauge, 140 AD2d 671, 672). An established domicile presumptively endures until a person clearly intends and acts to establish a new domicile (See, Matter of Bonora, 123 AD3d 699, 702; Matter of Ranftle, 108 AD3d 437, 441). A change of domicile, must be demonstrated by the party asserting same through the introduction of clear and convincing evidence (See, Matter of Urdang, 194 AD2d 615).
On this motion, the Respondent established her prima facie entitlement to judgment as a matter of law. The moving papers established that the Decedent was a long time domiciliary of the State of Maryland until shortly before she died. In her affidavit, the Respondent averred that the Decedent lived exclusively in Baltimore, Maryland from 1992 to 2016 where she was employed, owned a home and raised a family. These facts were not disputed by the Petitioner. Hence, it was incumbent on the Petitioner to adduce clear and convincing proof evidencing the Decedent's acts, statements and conduct that she intended to change her domicile from Maryland to New York (See, Matter of Pingpank, 134 AD2d 263, 265).
In opposition, the Petitioner submits, in addition to his own affidavit, affidavits from the Decedent's elder law and matrimonial attorneys in Maryland. All the affiants averred that the Decedent informed them that she intended to return to New York after her divorce was finalized. The Petitioner asserted in his affidavit that the Decedent's move to New York was motivated by her fraying connections to Maryland. The Decedent's marriage was over and her relationship with her children was tenuous.
The affidavits and other evidence annexed to the moving papers, however, did not reference any actual conduct by the Decedent to corroborate her intent to move to New York. More importantly, the statements attributed to the Decedent regarding her [*3]intentions are inadmissible hearsay. "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted" (Rodriguez v Sixth President, Inc., 4 AD3d 406, 407; see also, King v North Shore Long Is. Jewish Hosp. at Plainview, 127 AD3d 928; Sprotte v Fahey, 95 AD3d 1103).
Accordingly, as the Petitioners have failed to adduce clear and convincing evidence that the Decedent changed her domicile to New York State, the within motion is granted and the petition is dismissed without prejudice to the commencement of a proceeding to probate the propounded instrument in the State of Maryland.
It should be noted that both parties made arguments and submitted evidence concerning whether the Decedent possessed sufficient mental capacity to form the requisite intent to switch her domicile (See generally, Matter of Urdang, supra). This court expressly makes no finding as to the Decedent's capacity.
Settle order.
Dated: November 9, 2016
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