Administration Proceeding, Estate of Alan L. Putterman, To Declare Dead, 2010-362876
Cite as: Estate of Alan L. Putterman, 2010-362876, NYLJ 1202587552588, at *1 (Surr., NA, Decided February 5, 2013)
Surrogate Edward McCarty III
Decided: February 5, 2013
For Petitioner Borchert Genovesi LaSpina, P.C.: Stephanie M. Albert, Esq., guardian ad litem, Forchelli Curto Deegan Schwartz Mineo Cohn & Terrana, LLP, Helmut Borchert, Esq.
Incident to a proceeding for the issuance of letters of administration, the petitioner Burton Putterman sought a declaration pursuant to EPTL 2-1.7 that his brother, Alan L. Putterman, is deceased, based on his absence for a continuous period of three years. The petition alleged that the absentee Alan L. Putterman was divorced, had no issue, and that both of his parents were deceased, leaving the petitioner as his brother's sole distributee. The petitioner averred that the absentee, a United States citizen, was last seen in August 2004 while on a trip alone to Honduras. The absentee was a world traveler and his trip to Honduras was, therefore, not unusual. The petitioner averred that he was alerted to the fact that his brother never returned a car he rented in Honduras and never returned to the hotel where he was staying. A guardian ad litem was appointed to represent the absentee. By decision and order dated August 5, 2011, the court denied the application for a declaration of death without prejudice to renew, the court indicating that while it had no reason to doubt the veracity of the petitioner's allegations, there was insufficient evidence to support a finding of death.
The petitioner and his attorney have now filed additional affirmations with extensive documentary support including: certified copies of the absentee's account statements for the accounts he held at JP Morgan Chase; certified copies of the absentee's account statements for the accounts held at The Vanguard Group, Inc.; certified copies of the absentee's account statements for the accounts held at Oppenheimer & Co. Inc.; as well as account statements for
the absentee's accounts at UBS Wealth Management AG. All of these records reflect that there has been no activity in any of the absentee's accounts, except for interest deposits, monthly charges, and the like from the time of the absentee's disappearance in August 2004 to the present time. Furthermore, the application is supported by a letter signed by David Arimendi, Vice Consul of the United States of America at the United States Embassy in Honduras containing a detailed chronology of the efforts undertaken by the Embassy and local Honduran authorities to locate the absentee, as well as a letter from the United States Department of State, Office of Legal Affairs, Overseas Citizens Services, detailing their unsuccessful efforts to ascertain the fate of the absentee.
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 such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death."
"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 [Sur Ct, Westchester County] citing Matter of D'Urso, NYLJ, October 22, 1987, at 31, col. 1; see also Matter of Cosentino, 177 Misc 2d 629 [Sur Ct, Bronx County 1998]). Petitioner has established that since August 2004, his brother has been absent and that there has been no communication with the absentee since that date. In addition, there has been no satisfactory explanation for the absentee's disappearance. As to the requirement of establishing that a diligent search has been conducted, the supplemental affirmations and
documentary evidence submitted on the instant application are a model of thoroughness and provide overwhelming support for the petition. The guardian ad litem appointed to represent the interests of the absentee has filed her very detailed report and also concludes that the petitioner has met his burden of proof and recommends that the court make a judicial declaration of death of the absentee pursuant to EPTL 2-1.7.
The court therefore determines that Alan Putterman has not been heard from since August 27, 2004, and he is presumed to have died August 27, 2007 (EPTL 2-1.7).
The court has also reviewed the affirmation of legal services submitted by the guardian ad litem. She avers that she spent 4 hours on this supplemental application and requests a fee of $1,200.00 for the services provided. The report of the guardian ad litem is, as indicated above, quite detailed and was helpful to the court in reaching its conclusion. Being cognizant of the criteria used to determine attorneys' fees and also being aware of the fees customarily sought and awarded in similar proceedings, the court fixes the fee of the guardian ad litem in the sum of $1,200.00 which shall be paid by the administrator within 30 days of entry of the decree herein.