In this estate, there are administration proceedings pending in two courts. After one of the decedent’s sons, Raymond Hayes (‘Raymond”), filed a petition in the Orange County Surrogate’s Court (the ‘Orange County court”), another son, Irving Scott a/k/a Irving Hayes (‘Irving”), filed an application here. Raymond now moves for an order dismissing Irving’s petition pursuant to SCPA 707 and CPLR 3211(a)(4) or, in the alternative, staying this proceeding pending a determination from the Orange County court concerning the proper venue for this estate. Irving filed opposition to this motion. The decedent died intestate on April 23, 2021. Her distributees are the two sons and a daughter, for whom a consent to Irving’s application was filed. On June 28, 2021, Raymond filed an administration petition in the Orange County court alleging, inter alia, that the decedent was domiciled in Orange County when she died. On September 1, 2021, Irving filed the administration petition in this court under File Number 2021-1445, alleging that the decedent died a domiciliary of Bronx County. By an order dated January 19, 2022, the Orange County Surrogate denied Irving’s motion to dismiss Raymond’s petition, holding that ‘[s]ince the Orange County petition was filed first, Orange County remains proper venue for this proceeding until found otherwise [emphasis added].” In support of that branch of his motion seeking to dismiss Irving’s petition, Raymond alleges that Irving is unfit to serve as a fiduciary. Irving denies this claim. Raymond’s motion to dismiss, however, is premature, and Irving’s purported disqualification to serve as an administrator is not relevant to this decision inasmuch as the parties are contesting the proper venue for proceedings concerning the decedent’s estate. The only salient matters for consideration at this juncture are what is the proper venue and whether the Surrogate of Bronx County or Orange County will make that determination. Under SCPA 205 (1), the proper venue for proceedings relating to an estate is the county of the decedent’s domicile on the date of death. The statute further requires a surrogate, on its own motion or on the motion of a party, to transfer any pending estate proceeding to the surrogate’s court of the county where venue properly lies (see SCPA 205 [2]). Where estate proceedings have been filed in different surrogate’s courts and the decedent’s domicile is contested, it has long been the procedure to have the court in which an estate proceeding was first commenced determine the dispute (see Matter of Simonetti, 30 AD3d 530 [2d Dept 2006]; In re the Estate of Margolin, 129 Misc2d 735 [Sur Ct, NY County 1985]). Raymond filed his administration petition in the Orange County court prior to Irving filing his petition in this court. Therefore, the Orange County Surrogate should determine the decedent’s domicile and the proper venue for proceedings concerning the decedent’s estate. Upon his determination, the court found to have proper venue shall retain jurisdiction of all proceedings concerning the decedent’s estate. Proceedings filed with the other surrogate’s court shall be transferred pursuant to SCPA 205 (2). Accordingly, this decision constitutes the order of the court staying all proceedings filed herein, pending the decision of the Orange County Surrogate regarding the decedent’s domicile and the proper venue for proceedings concerning her estate. The Chief Clerk shall mail copies of this decision and order to counsel for Raymond Hayes, Irving Hayes, Louvinia Hayes and the Chief Clerk of the Orange County Surrogate’s Court. Proceed accordingly. Dated: March 9, 2022
