The following papers were considered in the preparation of this decision:Petition to Declare Dennis Shepherd Deceased, Affirmation, Affidavit & Exhibits 1Interim Report Guardian ad Litem 2Final Report Guardian ad Litem 3DECISION & ORDER Before the court in this administration proceeding is a petition brought by Joan Kiesow (“petitioner”), the mother of Dennis Shepherd (“Absentee”), seeking to declare the Absentee deceased. Petitioner in her original petition that was filed in 2013 sought both temporary letters of administration and full letters. Temporary letters have been granted and extended several times1 and are currently expired. The petition for letters of administration continues to be part of this proceeding. Petitioner alleges that the Absentee has been missing since May 18, 2012; and was exposed to a specific peril by virtue of his mental health issues, tendency towards suicide, and lack of access to money, proper clothing, and other necessities for survival at the time of his disappearance. A Guardian ad Litem (“GAL”) was appointed to appear for and protect the interests of the Absentee, and he has waived his fee.In April 12, 2012, the Absentee (d.o.b. January 6, 1966) was involuntarily committed to the Adult Psychiatric Unit at Stony Brook Hospital, due to among other things, delusions, paranoia, and his inability to attend to his own basic needs, according to hospital records annexed to the GAL report. While at Stony Brook, the Absentee was placed on suicide watch according to the Clinical Summary, provided to the GAL by the petitioner. On May 18, 2012 the Absentee was being transported from Stony Brook Hospital to Pilgrim State Psychiatric Center for a hearing concerning his involuntary commitment, and escaped upon his arrival to Pilgrim State. The Absentee has not been seen since May 18, 2012, and the petitioner, his mother, seeks to have him declared deceased and seeks letters of administration in order to administer his estate.The GAL filed an interim and final report. The GAL determined that the court had obtained jurisdiction over all necessary parties. The GAL conducted an extensive investigation in his attempts to determine the status of the Absentee; including interviewing the petitioner, and collecting documents from the petitioner related to the Absentee’s treatment, condition, and confinement, communication with the petitioner’s attorney, communications with the Absentee’s girlfriend, researching the Absentee’s Facebook account and storage unit, inquiring with the New York State Comptroller’s Office regarding possible unclaimed funds, subpoenaing records from: the Suffolk County Police Department; Experian and; financial institutions. The GAL advises that from 2013-2017 the Suffolk County Police Department periodically reviewed the Absentee’s case file and has not had any new leads on the case.The GAL’s investigation included obtaining statements from the Absentee’s known bank accounts to check for activity. The GAL was advised by the petitioner’s attorney that one of the reasons that the petitioner is pursuing this proceeding “is to gain access to approximately $70,000.00 in funds” that are in a bank account of the Absentee.Based on his investigation, the GAL is satisfied that there is no credible evidence that the Absentee engaged in financial transactions after the date he went missing. The contents of the Absentee’s storage unit were auctioned off in October 2012, and purchased by his brother. The Absentee has not been heard from since the date he went missing. The GAL is also satisfied that the Suffolk County Police Department conducted a diligent and exhaustive search for the Absentee.EPTL 2-1.7 (a) provides:“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.”The burden is on the party seeking the invocation of the presumption (Matter of Klein, NYLJ, Jan 22, 2015, at 33, col.1 [Sur CT, Suffolk County]). The petitioner has established through her affidavit, conversations with the GAL, and documents produced, a continuous absence for three years and that during that time there have been no communications from the Absentee. The GAL has set forth the details of the efforts made by the Suffolk County Police Department to locate the Absentee. In addition, the GAL has outlined the lack of evidence that the Absentee engaged in financial transactions since the date he went missing.The petitioner asserts a claim/prayer for relief that the Absentee was exposed to a specific peril of death, which pursuant to EPTL 2-1.7 (b) “may be a sufficient basis for determining at anytime after such exposure that he or she died less than three years after the date his or her absence commenced.” She supports this claim by stating that the Absentee was suicidal and unprepared to survive in the elements. The court agrees with the GAL with respect to this claim, and is not persuaded to deem the Absentee’s death less than three years from the date he went missing.The petitioner has met her burden. The court agrees with the recommendation of the GAL and declares the Absentee deceased as of May 18, 2015, three years from the date he went missing.The GAL has waived his fee.The petition is GRANTED to the extent that the Absentee is deemed deceased as of May 18, 2015 and letters of administration will issue to the petitioner upon qualifying.This constitutes the decision and order of the court.Submit decree.Dated: March 15, 2019Mineola, New York
