1 NATIONAL HEADQUARTERS 120 WALL STREET, 19 TH FLOOR, NEW YORK, NY 10005-3904 T 212-809-8585 F 212-809-0055 LAMBDALEGAL.ORG December 13, 2013 Court of Appeals State of New York 20 Eagle Street Albany, New York 12207-1905 Re: Matter of Ranftle (Deceased), APL-2013-00306 Respondent’s 22 N.Y.C.R.R. 500.11 Letter Response To: The Honorable Chief Judge Jonathan Lippman and the Honorable Associate Judges Respondent J. Craig Leiby (“Respondent” or “Craig”), by his attorneys Lambda Legal Defense & Education Fund, Inc. and Weiss, Buell & Bell, submits this letter pursuant to the November 1, 2013 letter of Chief Clerk Andrew W. Klein advising that this appeal has been selected for the alternative procedure provided in 22 N.Y.C.R.R. 500.11. 1. Statement of reservation of arguments pursuant to 22 N.Y.C.R.R. 500.11(f) Pursuant to Rule of Practice 500.11(f), Respondent hereby incorporates and reserves all arguments contained in his Appellate Division brief in this case, including any not expressly highlighted in this letter. 2 2. Preliminary statement Appellant challenges the fact findings of the Surrogate’s Court, affirmed by the Appellate Division, concluding that Appellant’s brother, Decedent H. Kenneth Ranftle (“Ken”), was domiciled at the time of his death in 2008 in New York State, where he lived with Craig, his same-sex spouse and the appointed executor of his will. As the lower courts noted, “[i]t is well settled that domicile is established by physical presence in a particular locality coupled with the intent to remain.” Kartiganer v. Koenig, 194 A.D.2d 879, 880 (3d Dep’t 1993); see also Matter of Newcomb, 192 N.Y. 238, 250 (1908). 1 The findings below compellingly establish that Ken was physically present in New York in the last phase of his life and had formed the intent to remain here. The Surrogate conducted a hearing, heard testimony of multiple witnesses, made express credibility determinations, and found by clear and convincing evidence that Ken intended to and did change his domicile back to New York from Florida during the year he married and before his death in November 2008. Surr. 7. The Appellate Division affirmed, agreeing that “the large and consistent body of evidence showing that” Ken re-established New York domicile “overwhelmed” Appellant’s “scattered evidence” to the contrary. A.D. 11. Appellant misleadingly 1 See Surrogate’s Court September 14, 2011 Post-Hearing Decision (“Surr.”) at 8; Appellate Division’s July 2, 2013 Decision (“A.D.”) at 11. These decisions are included, respectively, as Appellant’s Exhibits 1 and 2 to his letter submission to this Court. 3 ignores central, affirmed, findings of fact in this case, most significantly the lower courts’ determination of the importance to Ken of New York’s legal recognition of his out-of-state marriage to Craig and, following his diagnosis with a grave illness, of remaining domiciled in this State to afford legal protections to his beloved spouse. The “scattered evidence” Appellant points to on this appeal cannot overcome the “overwhelm[ing]” affirmed findings establishing New York as Ken’s domicile. Both courts below articulated and applied the correct legal standards to the findings of fact, which are amply supported in the record. On this posture, the scope of this Court’s review is exceedingly narrow. “The jurisdiction of the court of appeals shall be limited to the review of questions of law. . . .” N.Y. Const. art. VI, § 3(a); see also N.Y. C.P.L.R. § 5501(b); Cannon v. Putnam, 76 N.Y.2d 644, 651 (1990) (“finding . . . affirmed by the Appellate Division . . . is beyond our Court’s power to review”); Matter of MacDonald, 40 N.Y.2d 995, 996 (1976). This Court should affirm the well-founded dismissal of Appellant’s petition to vacate the Surrogate’s decree of probate, and bring long-overdue closure for Ken’s estate and final wishes. Notably, this is not the first time that one of Ken’s surviving brothers has attempted to set aside the decree granting probate and undermine Ken’s testamentary wishes and the legal rights of his same-sex spouse and executor. That 4 earlier attempt also failed in the Surrogate’s Court and Appellate Division. See Surr. 1; A.D. 4-5. In Matter of Ranftle, 81 A.D.3d 566 (1st Dep’t 2011), the Appellate Division affirmed the lower court’s rejection of Richard Ranftle’s claim that Ken’s and Craig’s 2008 marriage in Canada was not entitled to legal recognition in New York. The Second Circuit thereafter expressly relied on that decision in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), to establish in a challenge to the federal Defense of Marriage Act (“DOMA”) that the plaintiff’s Canadian marriage to her same-sex spouse was entitled to legal respect in New York prior to passage of this State’s Marriage Equality Act permitting same-sex spouses to marry here. Id. at 177-78. The U.S. Supreme Court’s June 2013 ruling in the case, striking down Section 3 of DOMA, likewise confirmed New York’s recognition of out-of-state marriages and the importance of that recognition to New York same-sex couples like Ken and Craig: By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). 5 Appellant disingenuously neglects even to mention to this Court the lower courts’ findings of the great significance to Ken that New York would accord legal recognition and protections to his marriage. The lower courts in the present case found that Ken was specifically motivated by, as the U.S. Supreme Court put it, the “far-reaching legal acknowledgment” of his relationship with Craig and the “dignity in the community equal with all other marriages” his nuptials would receive from his New York domicile state, but not from Florida, which would not recognize his marriage. 2 See Surr. 4-5, 5 n.11, 7, 9; A.D. 6-7, 11; Appendix (“A.”) 314, 318, 321, 355, 363. Under New York law, Ken’s surviving spouse is his sole distributee. See Surr. 1; Ranftle, 81 A.D.3d at 566; N.Y. Est. Powers & Trusts Law (“E.P.T.L.”) § 4.1-1(a)(2). As a result, his brothers are without standing to challenge Ken’s will in the hopes of winning larger bequests than Ken chose to provide them. See Ranftle, 81 A.D.3d at 566; N.Y. Surr. Ct. Proc. Act (“S.C.P.A.”) § 1403. The earlier attempt to have Ken’s marriage disrespected in New York having failed, Appellant makes this last-ditch effort to transfer probate to Florida, where Ken’s marriage would be disrespected and his brothers could claim standing to attack the will. The present effort, like the first, should fail. 2 See Fla. Const. art. I, § 27 (“Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”); Fla. Stat. Ann., tit. 43, § 741.212 (“Marriages between persons of the same sex entered into in any jurisdiction . . . are not recognized for any purpose in this state.”). 6 3. Summary of findings of fact The following facts, found by the Surrogate and affirmed by the Appellate Division, are amply supported in the record and binding on this Court. See Matter of MacDonald, 40 N.Y.2d at 996. These findings, which the Surrogate found “compelling and convincing,” were largely premised on live witness testimony specifically credited by the Surrogate. Surr. 3, 6, 7. They are thus accorded particular weight and deference. See, e.g., Thoreson v. Penthouse Int’l, Ltd., 80 N.Y.2d 490, 495 (1992). For years prior to 2003, Craig and Ken lived together in homes they purchased jointly in New York City, where they both were domiciled. Surr. 2, 3 n.6; A.D. 5; A. 292, 309-11, 313-14, 620. After his retirement, from 2003 through 2007, Ken changed his domicile to Florida to gain certain legitimate tax benefits. Surr. 2 n.6; A.D. 6; A. 324-26, 336. Craig continued working in New York. Surr. 3 n.6; A.D. 6; A. 307-08, 335. Throughout that period, Ken commuted regularly back to Craig and New York City. Surr. 3-4; A.D. 6; A. 326-27. Ken maintained robust connections to New York, where he had an extensive social life and where his health care professionals and financial advisors were located. Surr. 4; A.D. 6; A. 330, 326-27. In early spring 2008, while preparing for heart surgery at a New York City hospital, Ken was diagnosed with advanced terminal lung cancer. Surr. 4; A.D. 6; 7 A. 297, 327-29. Between his diagnosis and his sudden death in November 2008 from a heart attack, Ken never returned to Florida. Surr. 4, 8; A.D. 6, 8; A. 330, 726-27. Except for short trips to Montreal and California, Ken lived the remainder of 2008 with Craig in their New York home. Surr. 4, 8; A.D. 6, 8; A. 297, 314, 424, 726-27. In 2008, Ken spent a total of only 13 days in Florida. Surr. 4 n.7; A.D. 8; A. 330, 726-27. He pursued out-patient cancer treatment in New York, where he continued an “extensive social life . . . until his death.” Surr. 4; A. 333- 35, 354-55. The Surrogate specifically found that “the credible evidence demonstrates that, far from a frail and resigned patient, Ken was, to the end, a vibrant man who enjoyed life to its fullest and who lived where he did, and with whom, by his own clear choice, not because of medical necessity.” Surr. 4 n.10; see also A.D. 9, 11; A. 333-34, 354-55, 379, 401-02. This finding directly refutes Appellant’s suggestion that the only reason Ken remained in New York was to receive medical treatment. Cf. Appellant’s letter submission dated November 25, 2013 (“Appellant’s letter”) at 13, 19-20. 3 3 This case therefore is factually distinct from those on which Appellant relies. Cf. Matter of Urdang, 194 A.D.2d 615, 616 (2d Dep’t 1993) (noting, in case involving end-of-life residence in nursing home of woman more than 90 years old, that “an incapacitated person’s admission into a health-care facility does not cause a change of domicile if the incapacitated person is unable to express an intention to establish a new domicile”); Stranahan v. N.Y.S. Tax Comm’n, 68 A.D.2d 250, 254 (3d Dep’t 1979) (holding that days spent by a non-domiciliary confined to a hospital in this State for medical treatment may be exempted from residence determinations for income tax purposes). 8 Very significant to Ken and his decision to re-establish domicile in New York, on May 14, 2008, the administration of then-Governor Paterson issued an Executive Directive requiring State agencies to respect marriages of same-sex couples validly entered out of state. Surr. 4, 5 n.11; A.D. 6; see also A. 292-93, 314, 318-19, 321; Golden v. Paterson, 23 Misc. 3d 641 (Sup. Ct., Bronx County 2008) (upholding Governor’s authority). Ken was “thrilled” at this news. He proposed to Craig the same day, and Craig immediately accepted. Surr. 4; see also A.D. 6-7; A. 314, 363. They married on June 7, 2008 in Montreal, where the couple owned an apartment. Surr. 4-5; A.D. 7; A. 314, 615-19. Ken proudly kept his framed marriage certificate on display in his New York home. A. 363. Notably, the Surrogate found that “Ken well knew” that “Florida would not recognize his marriage,” Surr. 10, pursuant to that state’s “‘mini-DOMA’ statute, Fla Stat Ann, tit 43, § 741.212, which precluded any recognition of the marriage there.” Surr. 5 n. 11; see also A.D. 11; A. 293, 355. The Surrogate concluded, Based on the testimony of the witnesses, especially Craig, Ken’s accountant, and Ken’s attorney, I find by clear and convincing evidence that some time in 2008, probably at or around the time of his terminal diagnosis, but no later than his marriage, Ken formed the intent to abandon his Florida domicile and to re-establish his domicile in New York where his friends, family and beloved spouse were located. He did so for two reasons: to be with those he loved, in the city where he had lived and prospered, in the commodious apartment he and his 9 husband owned together, and had lived in since 1999; and because New York, unlike Florida, had expressed its willingness to recognize and respect his relationship with - and marriage to - Craig. Surr. 7; see also A.D. 9, 11; A. 314, 321, 327, 355. The Surrogate found “extensive proof presented by Craig” further specifically demonstrating that Ken intentionally changed his domicile from Florida to New York. Surr. 3. Appellant contends that “[t]he evidence showed that Decedent never took any affirmative action” to change his domicile to New York, and that the courts below instead relied solely on “‘mere passive acts of omission.’” Appellant’s letter at 3. This unfounded assertion directly contradicts the specific statements and findings of the lower courts. As the findings reflect, there was nothing “passive” about Ken’s concerted progressive steps to re- establish New York as his domicile and “in every way available . . . protect [] his husband Craig.” Surr. 9. Rather, as the Surrogate expressly found, through “a number of” acts, both pre- and post-marriage, Ken “affirmatively demonstrated his decision to abandon his Florida residence and re-establish his domicile in New York.” Id. at 5 (emphasis added). See also A.D. 7 (noting “affirmative steps” Ken took “to establish residence in New York”). For example: 10 Ken identified New York as his domicile on multiple official documents in Canada in connection with his marriage. On the multiple marriage documents filled out in connection with their marriage in Canada, Ken consistently listed New York as his domicile. For example, the Declaration of Marriage, signed by Ken and Craig and witnesses to the marriage, recites that the couple’s “domicile after the marriage” would be their New York apartment, as did a will Ken executed in Canada on May 18, 2008 to dispose of the couple’s Canadian property, and the official marriage record issued by the Province of Quebec. Surr. 5, 10; A.D. 7; A. 293, 319-22, 616, 619, 624. 4 Ken affirmatively chose to file his 2008 income taxes as a New York resident. He retained Barbara Morea, a New York accountant, to prepare his tax returns, “with the clear intention of filing as a New York resident.” Surr. 6; see also A.D. 7; A. 385-87, 866. His accountant - whose testimony the Surrogate specifically credited (Surr. 7) - testified that she advised Ken that she would not prepare his returns otherwise because by that point, in August 2008, he was a New York resident, and that he “understood and assented.” Surr. 6 n.14; A.D. 7; A. 386-87, 391, 394. This finding, amply supported in the record, directly contradicts Appellant’s claim that Ken “never agreed to have Barbara Morea prepare his 2008 4 Appellant claims that, “[s]ignificantly,” Ken and Craig did not claim Canadian citizenship or their Montreal apartment as their domicile in the Canadian documents. Appellant’s letter at 15- 16. These facts are indeed significant, in that they give further factual support for the affirmed finding below that Ken intended to and did establish New York as his domicile. 11 tax returns.” Appellant’s letter at 18. Appellant also incorrectly claims that Ms. Morea “did not know that it was [Ken’s] illness that necessitated Decedent’s remaining in New York for treatment.” Id. at 6. This assertion is doubly misleading. First, as the Surrogate found, Ken remained in New York by choice, not because of medical necessity. Surr. 4 n.10. Second, Ms. Morea testified that she was well aware that Ken was receiving medical treatment in New York, discussed this issue with him, researched tax residency rules on the issue (as her bill for services reflects), and concluded that that he did not qualify for an exception for medical care and instead had re-established New York residence. A. 388-93, 866. Ken also changed other tax records to reflect his New York address. Surr. 6; A.D. 7; A. 392, 729-30, 800. Ken took affirmative steps to ensure that Craig would be his executor, which would not have been permitted under Florida law had Ken remained domiciled there, and to prevent his brothers from being in a position to challenge his will. Significantly, the Surrogate also found a particularly “compelling fact” that Ken “was a proud gay man who treasured - and sought in every way available to protect - his husband Craig, and Craig’s rights upon his death.” Surr. 9-10; see A.D. 9; A. 314, 322, 327, 332-33, 345-46, 359, 363. Ken named Craig executor of his will, and “it was obviously [Ken’s] intent that Craig should not only be the primary beneficiary of his estate, but also that he be permitted ‘[t]o serve as a fiduciary [because to do so] is one of the last services a family member can 12 perform for a loved one who has passed away.’” Surr. 10 (quoting Matter of Toribio, 24 Misc. 3d 1024, 1029 (Surr. Ct. N.Y. County 2009)). Ken “well knew” that had he remained a domiciliary of Florida, Craig could not have served as his executor, because Craig would not be regarded as his spouse under Florida’s mini-DOMA and could not otherwise qualify to serve as his personal representative. Surr. 10; see also A.D. 9, 11; A. 295. Ken sought to avoid having “any member of his birth family” as his executor, even naming as successor executor his best friend, and not one of his brothers. Surr. 10 n.18. The Surrogate found it “[s]ignificant[]” that Ken did not name a family member “who might have - and indeed did - attempt to undermine Craig’s rights and status.” Id. Ken took other affirmative steps to avoid subjecting his assets to probate in Florida. Ken changed the title of his only real estate in Florida to give Craig possession at his death and avoid Florida probate. He also caused his primary non- real property asset, his car, to be shipped out of Florida prior to his death. Surr. 6, 7 n. 15; A.D. 7; A. 332-33, 346, 359, 652-62. These steps were consistent with Ken’s intent to do all in his power to protect Craig and avoid subjecting his estate and his spouse to hostile Florida law. Surr. 6, 7 n.15, 10 n. 19; A.D. 7; A. 314, 322, 327, 346, 355, 359. 13 On turning 65 in July 2008, Ken applied for Social Security and Medicare from his New York address. Surr. 6, 10; A.D. 7; A. 295, 333, 711-25. Ken changed his address to New York on investment accounts relating to his pension and health plan. Surr. 6; A.D. 7; A. 333, 729-30, 800. The Surrogate found that “[a]ll of these factors . . . compel the conclusion that respondent Craig has met his burden of demonstrating a change of domicile by clear and convincing evidence.” Surr. 10. The Appellate Division likewise concluded that “[w]e see no basis for disturbing the Surrogate’s Court’s finding that [Ken] changed his domicile to New York in the months before his death.” A.D. 10. The courts below addressed Appellant’s “scattered evidence,” and concluded that it “is overwhelmed by the large and consistent body of evidence showing that” Ken returned to New York “with the intent of permanently remaining there.” A.D. 11; see also Surr. 3, 7. Thus, Appellant’s contentions regarding the domicile recitation in Ken’s final will, carried over from prior computer-generated versions of his will, were found to be merely “a scrivener’s error by Ken’s long-time attorney.” Surr. 6. The Surrogate specifically found the attorney’s testimony on this point “highly credible, consistent with other facts, and persuasive that the inclusion of the Florida domicile was her error, unnoticed by Ken, and which did not reflect his intent.” Surr. 6; see also A.D. 9; A. 361. See Matter of Benjamin, 176 Misc. 518, 528 (Surr. Ct. N.Y. County 1941) (finding domicile claims in will 14 codicils not determinative of actual domicile, and noting that “[s]imilar words of description in wills or other formal documents inconsistent with the facts in the case, have been frequently disregarded by the courts.”). The Surrogate likewise found Ken’s vote in Florida by absentee ballot in the 2008 Presidential election “an anomaly insufficient to overcome the otherwise compelling evidence that Ken chose to become, became, and died a domiciliary of New York.” Surr. 7; A.D. 9; A. 356. Finally, the courts below also considered the few remaining vestiges of Ken’s earlier phase as a Florida domiciliary, i.e., that Ken had not changed his driver’s license from Florida to New York before his death and, prior to Governor Paterson’s announcement and his marriage to Craig, took a Florida homestead exemption and continued to list that state as his address on several documents. The Surrogate found that this evidence merely demonstrated passive inaction on Ken’s part consistent with his having previously been a Florida domiciliary, not proof that he did not subsequently form the intent to re-establish his domicile in New York, as the overwhelming body of evidence demonstrated. Surr. 7; A.D. 8-10. 5 5 Appellant suggests that Ken’s membership on the Board of the National Gay and Lesbian Task Force (“NGLTF”) and past attendance at annual NGLTF fundraisers in Florida prior to his return to New York in early 2008 somehow evidences that Ken was a Florida domiciliary at the time of his death. See Appellant’s letter at 14-15. In fact, NGLTF is a national organization whose main office is not in Florida but in Washington, D.C., with an office in New York as well. See Nat’l Gay & Lesbian Task Force, Annual Report 2011, Dec. 31, 2011, available at http://www.thetaskforce.org/downloads/devo/tf_ann_report_2011_f.pdf. A 2008 NGLTF- published list of its board members “As of April 1, 2008” identifies Respondent as “Ken Ranftle 15 These findings, affirmed by the Appellate Division, are unreviewable on appeal. 4. Given these affirmed findings, the courts below correctly concluded that Respondent established by clear and convincing evidence that Ken was domiciled in New York Given the lower courts’ intensely fact-driven determinations at the heart of this case - that Ken intended to and did re-establish domicile in New York in the months leading to his death - this Court is left with very little to review on appeal. See Matter of Rothko, 43 N.Y.2d 305, 318 (1977) (“Since the Surrogate’s findings of fact . . . were affirmed by the Appellate Division, if there is evidence to support these findings they are not subject to question in this court and the review here is confined to the legal issues raised.”). The lower courts articulated and applied the correct legal standards to the findings of fact. As the lower courts noted, domicile is defined in Section 103(15) of the Surrogate’s Court Procedure Act (“S.C.P.A.”) as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” A.D. 10; see also Surr. 2. Domicile is established “by physical presence in a particular locality coupled with the intent to remain.” Kartiganer, 194 A.D.2d at 880; see also Surr. 8. (New York, NY).” Nat’l Gay & Lesbian Task Force, Creating Change, Spring/Summer 2008, at 2, available at http://factreal.files.wordpress.com/2011/06/gimenez- gaylesbiantaskforce2008.pdf. 16 Domicile is sometimes referred to as “a mixed question of fact and law.” A.D. 10, citing Matter of Brunner, 41 N.Y.2d 917, 918 (1977). However, this Court has commonly considered it purely “one of fact rather than law.” Matter of Newcomb, 192 N.Y. at 250; see also Matter of Brunner, 41 N.Y.2d at 918 (“it has been said that [domicile] is a question of fact rather than law”); Rubin v. Irving Trust Co., 305 N.Y. 288, 306 (1953) (“Domicile, of course, is a question of fact and not of law . . . unless the undisputed facts admit of but one inference.”). Whether regarded as a pure question of fact or a mixed question of law and fact, it is clear that a determination of domicile depends on highly textured findings and weighting of evidence by the trier of fact, entitled to great deference by reviewing courts. A determination of domicile “frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals.” Matter of Newcomb, 192 N.Y. at 250. As both courts below emphasized, “[n]o single factor is dispositive [Kartiganer, 194 A.D.2d at 881], and the unique facts and circumstances of each case must be considered [Ruderman v. Ruderman, 193 Misc. 85, 87 (Sup. Ct. N.Y. County 1948), aff’d 275 A.D. 834 (1st Dep’t 1949)].” A.D. 10; see also Surr. 8. Intent to establish domicile may be found from whether “‘the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it.’” Surr. 8, quoting Kartiganer, 194 A.D.2d at 881 (emphasis supplied by Surrogate). “Where there is 17 conflicting testimony, the resolution of the conflict lies within the province of the trial court, as the finder of fact, and should not be disturbed on appeal unless ‘it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence.’” Fernandez. v. Monegro, 10 A.D.3d 429, 430 (2d Dep’t 2004) (citation omitted). Finally, as both courts explicitly noted, the party asserting a change of domicile bears the burden of proving that change by “clear and convincing evidence.” Surr. 2; A.D. 10; see Gletzer v. Harris, 51 A.D.3d 196, 199 (1st Dep’t 2008), aff’d 12 N.Y.3d 468 (2009). To meet that standard, a party “must satisfy [the trier of fact] that the evidence makes it highly probable that what (he, she) claims is what actually happened.” Matter of Poldrugovaz, 50 A.D.3d 117, 127 (2d Dep’t 2008), citing N.Y. P.J.I. 1:64. The courts below found that Craig met this burden, establishing by clear and convincing evidence that in 2008, “no later than his marriage,” Ken did in fact re-establish domicile in New York. Surr. 7; A.D. 9, 11. Appellant’s effort to persuade this Court that other purported evidence undermines those findings is inappropriate on this appeal. See Matter of Newcomb, 192 N.Y. at 249 (holding that appellant’s conflicting evidentiary facts “are not open to us, for they are conclusively disposed of by the finding of the 18 surrogate,” affirmed by the Appellate Division, that decedent changed her domicile prior to her death). 6 This Court’s task on appeal thus is simple - and exceedingly narrow. The lower courts clearly applied the correct legal standard to determine domicile in this case. Their extensive, detailed findings of fact are supported in the record and unreviewable. The lower courts found that Ken resided in New York through most of 2008 and intended to remain a domiciliary in the State where he could spend the remainder of his life with his beloved spouse and ensure legal respect and protections for his marriage. As found below, the New York government’s announced recognition of out-of-state marriages of same-sex couples in May 2008 was a decisive factor in Ken’s affirmative decision to re-establish his domicile in New York, in large measure to afford maximum legal protection to Craig as Ken’s heir and executor. See Matter of Newcomb, 192 N.Y. at 252 (noting choice a person might make to change domicile because she preferred laws of one state over another and “wished to have her will proved and her estate settled there.”). The 6 Appellant relies on the view of a single dissenting justice below that, given some purportedly conflicting evidence in the record, Respondent did not meet the clear and convincing standard. See Appellant’s letter at 11; A.D. at 16-17 (Sweeny, J., dissenting). But the Surrogate carefully considered the allegedly conflicting evidence propounded by Appellant, including Appellant’s own testimony, and found it “insufficient to overcome the otherwise compelling evidence that Ken chose to become, became, and died a domiciliary of New York.” Surr. 7; see also Surr. 3, 6; A. 406-25. The Surrogate found that Craig’s proof conveyed “a compelling and convincing story that answers and/or overcomes [Appellant’s] arguments.” Surr. 3. The Appellate Division majority affirmed, “agree[ing] with the Surrogate that [Craig] met his burden of proof as to the change of domicile,” and that the “large and consistent body of evidence showing” change of domicile “overwhelmed” Appellant’s conflicting allegations. A.D. 11. These affirmed findings must be accepted on appeal. 19 lower courts gave proper weight to Ken’s final wish to plant his flag in the state that accorded his relationship with Craig legal dignity and protections. Given the conclusive, affirmed findings below and the lower courts’ application of the correct legal standard to those facts, this Court should affirm. 5. Additional unpreserved arguments asserted by Appellant are not entitled to review and are meritless in any event Appellant admits that he did not bother to raise in the Appellate Division contentions he now advances about purported unresolved discovery motions and objections to Attorney Erica Bell’s appearance in this case. See Appellant’s letter at 23-25. Not only did Appellant fail to raise these fallacious claims in the Appellate Division, but he also never asserted them in the Surrogate’s Court - as his notable failure to supply a single record cite to support these claims demonstrates. Appellant has thus waived these arguments. See Bingham v. N.Y.C. Transit Auth., 99 N.Y.2d 355, 359 (2003) (“As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal.”). They are, in any event, meritless. First, Appellant never filed a single motion for discovery pursuant to N.Y. C.P.L.R. Article 31 concerning the domicile question raised in his petition. Indeed, it was noted before the Surrogate, on the record, that Appellant had neglected prior to examining Ken’s attorney to subpoena discovery from the attorney, who nonetheless agreed to return to her office and obtain her file during a 20 break in the hearing. A. 365-66. Appellant’s claim now that the lower court somehow “den[ied] . . . his rights to discovery,” Appellant’s letter at 24, is utterly baseless. 7 Appellant likewise never raised an objection before the Surrogate or Appellate Division to the propriety of Attorney Bell’s appearance as a witness and, along with separate litigation counsel, on court papers in this case. Nor was there any impropriety. Rule 3.7(a)(5) of the Rules of Professional Conduct explicitly allows an attorney, likely to be called as a witness, to continue her representation if “the testimony is authorized by the tribunal,” as it was by the Surrogate below. See 22 N.Y.C.R.R. § 1200.0, Rule 3.7(a)(5). Indeed, the Surrogate expressly noted that Attorney Bell’s testimony was “highly credible.” Surr. 6. 8 Furthermore, separate counsel represented Respondent at the hearing, submitted post-hearing 7 To the extent Appellant may be referring to the request in his petition to conduct preliminary examinations under S.C.P.A. § 1404 (see A. 152), he would only be entitled to such examinations if he were a “party to the proceeding,” S.C.P.A. § 1404(4), i.e., a person served with citation, see S.C.P.A. § 1403. Of course, Appellant and his brother Richard Ranftle have been engaged in a protracted, and unsuccessful, effort to obtain that status. As the Appellate Court has held in this case (A. 11) and in Matter of Ranftle, 81 A.D.3d 566, Appellant is not a distributee entitled to citation; thus he has no right to conduct examinations under Section 1404(4). See section 6, infra. 8 Rule 3.7(a)(3) further provides that an attorney may serve as a witness where “disqualification of the lawyer would work substantial hardship on the client.” See also S & S Hotel Ventures Ltd. P’ship v. 777 S. H. Corp., 69 N.Y.2d 437, 444-45 (1987) (Rules of Professional Responsibility are not to be “mechanically applied” as controlling law, but are “guidance for the courts in determining whether a case would be tainted by the participation of an attorney or a firm.”); Niesig v. Team I, 76 N.Y.2d 363, 369-70 (1990). 21 memoranda to the Surrogate, and has appeared at every stage of appeal. 9 Appellant’s unpreserved and unfounded attempt to cast doubt on Attorney Bell’s role in this case should be rejected out of hand. See Gulino v. Gulino, 35 A.D.3d 812, 812 (2d Dep’t 2006) (party alleging impropriety must make clear showing that disqualification is warranted). 6. The courts below correctly held that the estate was not required to serve Appellant with a citation Appellant once again raises the claim, which was flatly rejected by the Appellate Division, A.D. 11, that the probate decree should be vacated because Appellant was the beneficiary of a larger bequest under Ken’s previous will and was therefore a necessary party to the probate proceeding and entitled to a citation under S.C.P.A. § 1403(1)(d). See Appellant’s letter at 22-23. That section requires that a citation be served on any person “designated as beneficiary . . . in any other will of the same testator filed in the surrogate’s court of the [same] county . . . whose rights or interests are adversely affected by the instrument offered for probate.” As the Appellate Division found, “no other will was filed or offered for probate,” A.D. 11, and Appellant does not claim otherwise. But he now incorrectly asserts that Craig’s post-probate submission of a photocopy of the 9 Kevin J. Farrelly, Esq., of the Law Offices of Kevin J. Farrelly, advocated for Respondent at the domicile hearing. A. 303. See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 179, 180 (2d Cir. 2009) (holding outside scope of Rule 3.7(a) transactional lawyers and member of litigation team, likely to be called to testify at trial, because they would not advocate before jury, and disapproving of belated objections to attorney witnesses based on “opportunistic and tactical motives”). 22 earlier will as an exhibit in connection with the domicile hearing belatedly triggered the citation requirement under S.C.P.A. § 1403(1)(d). See Appellant’s letter at 23. First, § 1403(1)(d) applies where a will has been “filed” with the surrogate as of the time of the probate proceeding. See also S.C.P.A. § 1402(2) (“The petition for probate shall . . . describe the will being offered . . . and any other will of the same testator [then] on file in the court”). There is no requirement of notice to a person named in a will not filed in Surrogate’s Court at the time of the probate proceeding. See A.D. 11; see also Matter of Abrial, 286 A.D. 916 (3d Dep’t 1955). Second, a will is by definition a “written instrument,” E.P.T.L. § 1-2.19, which must be an original document executed in accordance with certain formalities described in E.P.T.L. § 3-2.1, not merely a photocopy (unless the original is proven lost or inadvertently destroyed as provided in S.C.P.A. § 1407). And the “filing” of a will means formally placing a testamentary instrument under the Surrogate’s authority either for probate, in accordance with S.C.P.A. §§ 1402- 08, or for safekeeping, as provided under S.C.P.A. §§ 2507-08. Accordingly, the mere fact that a photocopy of a prior will eventually makes its way into the court record does not mean that any prior will has been “filed” for purposes of S.C.P.A. 23 § 1403(1)(d), and does not retroactively make the disappointed legatee a necessary party to the probate proceeding entitled to citation. 7. Given the centrality to this case of unreviewable affirmed findings of fact, along with the lower courts’ correct application of the law, this appeal is ideal for the Rule 500.11 procedure, and Appellant’s request to file a reply should be denied The lower courts’ conclusion that Ken was domiciled in New York at the time of his death is premised on affirmed findings of fact, unreviewable on this appeal, making this case a prime candidate for the Court’s alternative procedure. See Rule 500.11(b)(1). Nor does this case raise unsettled or far-reaching questions of law or otherwise warrant consideration under the Court’s more extensive appellate process. Likewise, Appellant’s request for a reply should be denied. Appellant has demonstrated in his 26-page letter brief a penchant for omitting the most salient findings of fact and for raising unpreserved and unfounded issues. Respondent will not have the opportunity oral argument offers to respond to whatever else Appellant may try in his reply to hit from left field. Nor has Appellant followed the procedure for making such a request specified in Rule 500.11(e), which requires that Appellant submit the proposed filing with the request, or made any showing to justify his request. 24 8. Conclusion Under the affirmed findings of fact in this case, Ken Ranftle died in November 2008 a domiciliary of New York, the state that respected and protected his marriage to his beloved spouse Craig. The Ranftle brothers’ machinations in the courts to circumvent Ken’s clear final wishes should be put to an end. The decision of the Appellate Division entered July 2, 2013, affirming the Surrogate’s Court, was properly made and should be affirmed. Respectfully submitted, LAMBDA LEGAL DEFENSE AND EDUCATION FUND By:/s/________________________ Susan L. Sommer ssommer@lambdalegal.org Keith Hammeran 120 Wall Street, 19 th Floor New York, New York 10005 (212) 809-8585 WEISS, BUELL & BELL Erica Bell ebell@wbblaw.com 11 Park Place, Suite 606 New York, New York 10007 (212) 967-5710 Attorneys for Respondent J. Craig Leiby