Warring Public Administrators Face Off in New York’s Appellate Court
Public administrators from two New York counties, Kings and Richmond, have been engaged in a dispute over which will administer the eight million dollar estate of decedent Palma Bonora, who died intestate.
Bonora was a lifelong Brooklyn (Kings County) resident who, for the last four years of her life, lived in a Staten Island (Richmond County) nursing home. Prior to her relocation to Staten Island, Bonora’s guardian had Bonora’s Brooklyn home demolished and the land later sold. It is undisputed that Bonora lacked the mental capacity to change her domicile from Kings County to Richmond County and that she was moved by her guardian to Staten Island so that she could obtain the necessary medical care.
Under New York law, the venue of estate administration lies in the county in which the decedent was domiciled at the time of her death. After Bonora died in July 2013, each of the Kings and Richmond County public administrators petitioned to administer her estate before the Surrogate’s Court of his own county. The Richmond County public administrator was first to file his petition in Richmond County, but the Kings County public administrator was first to be issued both the temporary and full letters of administration by the Kings County Surrogate’s Court.
The two Surrogates’ Courts have since reached opposite conclusions on where Bonora was domiciled, each finding her domicile to be in its county. This has led to an appeal to the New York Appellate Division, Second Department, for clarification as to where the decedent was domiciled.
The two public administrators had stipulated that the Richmond County Surrogate’s Court would decide the domicile issue because it was in this county that the petition was filed first. Richmond County Surrogate Gigante found that Bonora was a domiciliary of Richmond County. Surrogate Gigante based his decision on the “evolution of case law over the past seventy years,” which shows that the domicile of an incompetent can be changed by a guardian under certain circumstances. He further cited Section 103(15) of the New York Surrogate’s Court Procedures Act (“SCPA”), which defined “domicile” as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” Surrogate Gigante held that Bonora’s domicile is Richmond County for the following reasons: (1) the guardian acted in Bonora’s best interest in moving her to Richmond County, (2) there was complete abandonment of her residence in Kings County in light of the razing of her home and sale of the land, and (3) Bonora’s health condition precluded her from ever returning to Kings County.
However, Kings County Surrogate Lopez Torres reached the opposite conclusion. First, Surrogate Lopez Torres held that, on the sole basis of being first to be issued the letters of administration, pursuant to Section 704 of the SCPA, the Kings County public administrator has exclusive authority to administer the estate until the letters are revoked. She rejected the argument that priority in time of filing a petition would provide an advantage – in this instance to allow Surrogate Gigante to determine the issue of domicile – as this would “encourage unseemly races to the Surrogate’s Court from the death bed of intestates.” Matter of Dolansky, 196 Misc. 802 (Sur. Ct. Schenectady Cnty. 1949).
Surrogate Lopez Torres further held that, in any event, under that the facts of this case, Bonora’s domicile is Kings County. She stated that the Richmond County public administrator failed to meet his burden of proving clearly and convincingly that Bonora had changed her domicile to Richmond County because to change one’s domicile, there must be intent to do so. Relying on precedent, she stated that such intent cannot be formed by an incapacitated person, and an adult who has been adjudged an incompetent retains the domicile which she had at the time she became incompetent. Surrogate Lopez Torres further cited appellate decisions bearing similar facts for the proposition that, generally, an incapacitated person’s admission into a health-care facility does not cause a change in domicile. See, e.g., Ratkowsky v. Browne, 267 A.D. 643, 646 (3d Dep’t 1944) (holding domicile to remain in New York where person sold her New York apartment and moved out of state solely for medical treatment); In re Urdang, 194 A.D.2d 615, 616 (2d Dep’t 1993) (finding the domicile to be decedent’s lifelong county despite her home having been sold because there was no showing that she intended to establish a new domicile and would not have returned home health permitting). Moreover, she rejected the Richmond County public administrator’s argument that a guardian could effect a change of a ward’s domicile, and remarked that, here, Bonora’s godson and guardian was only granted authority to change her abode, not her domicile. Surrogate Lopez Torres concluded that Bonora was domiciled in Brooklyn because Bonora could not have intended to make a change given her undisputed mental incapacity, and because, unlike the cases relied upon by Surrogate Gigante, Bonora had never expressed an intent to move from Kings County prior to becoming incapacitated nor do any other facts justify finding a change