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LAW OFFICES OF NICHOLAS A. PENKOVSKY, P.C.
ONE RIVERDALE AVENUE
SUITE 1 EAST, BOX 12
RIVERDALE, NY 10463
TELEPHONE: (347) 603-7676
FACSIMILE: (347) 603-7676
December 30, 2013
Court of Appeals
State of New York
20 Eagle Street
Albany, New York 12207-1095
Re: Matter of Ranftle (Deceased)
APL-2013-00306
The Honorable Chief Judge Jonathan Lippman
and Honorable Associate Judges:
Appellant Ronald Ranftle (“Appellant”), brother of Decedent, H. Kenneth
Ranftle, a/k/a Howard Kenneth Ranftle, Jr., a/k/a Kenneth Ranftle (“Decedent”),
respectfully requests leave to file his Reply Letter Brief pursuant to Court of
Appeals, State of New York Rule of Practice 22 N.Y.C.R.R. 500.11(e).
Appellant respectfully submits that his Reply Letter Brief is necessary, in
part, because Respondent now for the first time relies upon the recently decided
same sex marriage case United States v. Windsor, 133 S.Ct. 2675 (2013), decided
on June 26, 2013. Although Windsor is irrelevant on the issue of domicile, this
Reply also addresses Respondent’s newly raised argument that relies on Windsor
in which the United States Supreme Court affirmed the United States Second
Circuit Court of Appeals’ decision, Windsor v. United States, 699 F.3d 169
(2012), decided on October 18, 2012 but never cited by Respondent in this appeal.
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1. Preliminary Statement.
This appeal arises from a Surrogate’s Court testamentary domicile decision
then affirmed by the Appellate Division. Respondent mischaracterizes Appellant’s
Letter Brief and the basis of his Appeal. Respondent’s contention that Appellant
asks this Court to engage in renewed fact finding is baseless. Respondent also
mischaracterizes Appellant’s proceedings below and his appeal as a “machination”
to set aside Decedent and Respondent’s same sex marriage. Respondent’s
contentions are contradicted by the record that clearly demonstrates that the
Surrogate’s Court proceedings, and this appeal, have always been limited to the
issue that Decedent’s domicile for several years before his death, and at the time of
his death, was Florida, and that Respondent failed to prove by clear and
convincing evidence that Decedent changed his domicile to New York.
Respondent also misstates the law of domicile, and mistakenly argues that
Decedent’s living in his long established New York residence during his medical
treatment is an indicium of an intent to change domicile. The facts show that
Decedent never abandoned his Florida domicile and that he continued to enjoy the
benefits and privileges of his Florida domicile including his Florida Homestead
Tax Exemption on his Fort Lauderdale home, and his Florida car registration and
driver’s license. Decedent even affirmatively voted in the November 2008 election
in Florida by absentee ballot within days of his death. See Stipulation as to
Uncontested Facts, A292-298; A297, ¶¶ 32, 33, 34, 35. Florida Voter Lookup
Print Out, A449. “Filing for Homestead and Other Exemptions,” A250-A254.
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2. Respondent Incorrectly Argues That Appellant’s Letter Brief Asks
this Court to Engage in Fact Finding.
Respondent incorrectly characterizes the legal arguments in Appellant’s
Letter Brief. Appellant has argued that the Court’s below applied an erroneous
legal standard to significant facts which resulted in an erroneous finding that the
Decedent had changed his domicile to New York. Both Surrogate’s Court and the
Appellate Division enunciated never before stated nor recognized, and erroneous
standards of law, which the Appellate Division called “Passive Acts of Omission,”
and Surrogate’s Court called “Passive Inaction.” These erroneous standards of law
resulted in the courts below erroneously disregarding important and critical facts
stipulated to by the parties and found at Surrogate’s Court, and then affirmed at
the Appellate Division that show that Decedent never changed his domicile from
Florida to New York.
Respondent’s reliance on Cannon v. Putnam to argue that this Court
merely reviews the law, is misplaced. In Cannon, this Court stated that it
“considered all aspects of the case and the governing principle” to reach a
conclusion. Cannon v. Putnam, 76 N.Y.2d 644, 650 (1990). This Court also
looked to the hearing record and found support for the trial court’s correct
application of the statute at issue. Canon v. Putnam, 76 N.Y.2d at 651. The logical
understanding from Cannon is that this Court does not review abstract issues of
law, but reviews both the record and the rule of law to determine whether the
court’s below used the correct rule of law and then applied that rule correctly.
Similarly here, Appellant asks this Court to consider the findings of fact
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below and to hold that the rule of law that Surrogate’s Court and the Appellate
Division applied to those facts was incorrect. Appellant is not asking this Court to
make different fact findings. Instead, as in Canon, Appellant asks this Court to
consider all aspects of this case and the governing principle of law and then hold
that the courts below created an erroneous principle of law. As a result of the
courts below applying this never before enunciated principle of law, they erred
when holding Respondent had carried his burden of proof that Decedent had
changed his domicile from Florida to New York by clear and convincing evidence.
Respondent’s citation to MacDonald v. Nolan is inapplicable. Appellant is
not asking this Court to find any different facts than had been found by the courts
below, nor that there was an error of fact. MacDonald v. Nolan, 40 N.Y.2d 665,
666 (1976). In Matter of Rothko, cited by Respondent, this Court reviewed
whether the Surrogate and the Appellate Division had applied an improper legal
standard to first, the Surrogate’s findings of fact, and then the Appellate Division’s
affirming those facts. Matter of Rothko, 43 N.Y.2d 305, 318 (1977).
Appellant here submits that both the Surrogate and the Appellate Division
applied an erroneous and never before stated legal standard to facts and thereby
erred in their respective decisions which are now before this Court.
Respondent also disingenuously argues that this is an appeal about same sex
marriage. There is absolutely nothing in the record to support this argument. More
specifically, Appellant has stated that he did not seek to have the marriage
invalidated. A267-A269. In a misguided attempt to buttress his argument,
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Respondent mistakenly relies upon Estate of H. Ranftle, 81 A.D.3d 566 (1st Dep’t
2011) and United States v. Windsor, 133 S.Ct. 2675 (2013).
Estate of H. Ranftle was a proceeding commenced and appealed by
Decedent’s other brother, Richard, in which recognition of Decedent and
Respondent’s marriage was challenged as violating public policy. Estate of H.
Ranftle, 81 A.D.2d at 567. On that appeal, the Appellate Division, First
Department held that the New York State Legislature’s failure to recognize
“validly performed out-of-state same-sex marriages, cannot serve as an expression
of public policy for the State. In the absence of an express statutory prohibition
legislative action or inaction does not qualify as an exception to the marriage
recognition rule.” Id. (Internal citation omitted).
In United States v. Windsor, the Supreme Court makes clear that there is
“virtually exclusive primacy of the States in the regulation of domestic relations.”
United States v. Windsor, 133 S.Ct. at 2692. The Windsor Court also states that
New York’s law permitting same sex marriage was passed in an effort to eliminate
inequality. United States v. Windsor, 133 S.Ct. at 2694.
By contrast in the instant appeal, both Surrogate’s Court and the Appellate
Division put an impermissible thumb on the scale and disregarded well established
law by classifying Decedent’s continued contacts with Florida as merely “Passive
Acts of Omission” or “Passive Inaction.” This disregard of established law has
created an inequality in New York law when evaluating a Decedent’s stated
testamentary declaration of a chosen domicile and contacts with that domicile.
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New York State’s marriage statute states, “[n]o government treatment or
legal status, effect, right, benefit, privilege, protection or responsibility relating to
marriage, whether deriving from statute, administrative or court rule, public
policy, common law or any other source of law, shall differ based on the parties to
the marriage being or having been of the same sex rather than a different sex.”
N.Y.DOM.R.L. § 10-a(2). (McKinney’s 2013). Consequently, both Windsor and
New York State Domestic Relations Law prohibit a court from establishing a
different standard of law to Decedent’s declared Florida domicile and his
continued contacts with his Florida domicile.
3. Respondent Incorrectly Argues That Live Testimony at Surrogate’s
Court Has Greater Weight than Decedent’s Written Declaration in His Will
that Florida is His Domicile.
Respondent improperly relies upon Thoreson v. Penthouse Int’l, Ltd., 80
N.Y.2d 490, 495 (1992) for the proposition that live testimony is due greater
deference than the content of Decedent’s will. Thoreson was a sexual harassment
case in which the issue was whether punitive damages were available under
Executive Law § 297(9). Id.
By contrast, in an estate proceeding such as the case on this appeal, Justice
Sweeny correctly wrote in dissent at the Appellate Division that testimony,
including attorney drafter testimony, “may be disregarded when they conflict with
[Decedent’s] actions.” In re Ranftle,108 A.D.3d 437, 443 (1st Dep’t 2013), citing
2–32 Warren's Heaton, Surrogate's Court Practice §32.11[3][d] at 32–72 [7th ed.
2006]. Justice Sweeney further noted that “[i]n this case, both decedent's and his
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attorney’s actions clearly conflict with [decedent’s Attorney Erica Bell’s]
statement.” In re Ranftle,108 A.D.3d at 443.
Respondent casts this appeal as Appellant’s “effort to persuade this Court
that other purported evidence undermines” the determination of the courts below.
Respondent’s Letter Brief at p. 17. This is not correct. Appellant is not disputing
the facts. Rather, Appellant argues that the courts below applied novel and
incorrect legal standards to significant and highly relevant facts, facts which
Respondent then fails to address in his Letter Brief.
4. Respondent Misstates Certain Facts, Overlooks Significant and
Highly Relevant Facts, and Fails to Address the Erroneous Rules of Law the
Courts Below Applied to These Facts.
a. Decedent and Respondent’s Canadian Marriage Documents.
Respondent misstates the facts and legal issues with respect to Decedent and
Respondent’s Canadian marriage documents. Both Decedent and Respondent’s
information appear on the Canadian documents. The Canadian marriage
documents are merely conflicting and do not prove by clear and convincing
evidence that Decedent changed his domicile to New York.
Respondent’s argument that the Canadian marriage documents are
indicative of a change of domicile is not supported by the record. Respondent
overlooks the fact that Decedent and Respondent’s Canadian Dispensation of the
Publication of Marriage states that their residence is New York. A618. This
document contradicts the domicile document and also affirms the legal maxim that
a person may have more than one residence but only one domicile.
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Section 13 of the Declaration of Marriage refers to the marriage domicile or
family residence under 401-413 of Chapter 64 of the Laws of Quebec and not a
spouse’s individual domicile covered under Article 75-87. Article 82 provides that
married spouses may have separate domiciles, without prejudice to respecting their
living together. See Civil Code of Québec, 1991 c. 64, reported at:
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?typ
e=2&file=/CCQ_1991/CCQ1991_A.html, last visited on August 8, 2013, with the
site bearing the Notice: “Updated to 1 August 2013. This document has official
status.”
The issue of application of Canadian Law to these documents has never
been addressed by any of the Courts below. In the absence of clear resolution of
the meaning of these Canadian documents they cannot be held to be relevant on
the domicile issue before this Court. Neither may this Court cannot draw any legal
conclusions from the Canadian documents.
b. Decedent’s Income Tax Returns.
Respondent is also wrong when he states that Decedent affirmatively chose
to file his 2008 Income taxes as a New York State resident. The record is clear that
Decedent never filed his 2008 Income Taxes as a New York State resident. His
2008 income taxes were filed by his estate. A865.
In July 2008, Decedent affirmatively choose to make an advance payment
on his 2008 New York State Income taxes as a nonresident of New York State.
A850. Decedent’s advance payment was made more than four months after
Decedent also used the term “domestic partner” in his pre-marriage April 15, 2008 Will1
when referring to Respondent. A431-A439.
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Decedent had first come into New York State for medical treatment and after his
marriage to Respondent.
Despite the presence of a letter to Decedent from Barbara Morea dated
December 12, 2007, referring to a meeting with Decedent [A859], Decedent filed
his 2007 income tax returns in July 2008 with his long time accountant, Kevin
Lynch, CPA, not Barbara Morea or her firm. A847-A850.
c. In His Will, Decedent Declared Himself to Be Domiciled in
Florida.
Certain other important events occurred after Decedent and Respondent’s
June 7, 2008 Canadian marriage in which Decedent affirmatively continued to
assert Florida as his domicile. Of paramount importance, Decedent prepared his
Last Will and Testament executed on August 12, 2008. A440-A449. In this Will,
Decedent affirmatively declares himself to be permanently domiciled in Florida.
A440. Decedent also never used the word “spouse” in his Will when referring to
Respondent, perhaps in recognition that Florida does not acknowledge marriages
between members of the same sex. See FLA. STAT. ANN. §741.212 (Thomson
Reuters 2013). A450, 2009 printing of statute.
Decedent, a domiciliary of Florida’s Broward County, used the term
“domestic partner” in his final Will executed on August 12, 2008 when referring
to Respondent. A440-A448. Decedent also used the term “domestic partner” in1
his Health Care Proxy designating Respondent as his proxy holder. A512. These
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designations were clearly made in an effort to avoid any issue of his marriage to
Respondent and also because Broward County recognizes Domestic Partnerships.
See Broward County Domestic Partnership Act of 1999, Ord. No. 1999-03, §§ 1-
13 (January 26, 1999). In his Will, Decedent also appointed a friend to select an
appropriate executor in Florida. A445, Paragraph Eighth.
4. Respondent Disregards That Decedent Continued His Important
Legal Contacts with Florida Until His Death.
Respondent ignores that Decedent chose to maintain his tax and
governmental contacts with Florida rather than changing them to New York.
Decedent never changed his car registrations from Florida to New York. Decedent
also continued to maintain a Florida driver’s license. Decedent also affirmatively
voted in Florida as an absentee voter from his New York residence in the
November 2008 election. A449.
In Matter of Shapiro the Decedent bought a car in Florida yet registered the
car in New York and continued to maintain New York license plates on the car.
Matter of Shapiro, 36 Misc.2d 271, 272 (Surr. Ct., Westchester Cnty. 1962). The
Surrogate in Shapiro found this fact one of the more important facts to determine
that the Decedent did not intend to change her domicile to Florida. Matter of
Shapiro, 36 Misc.2d at 271. Similarly Decedent’s refusal to change his car
registrations and driver’s license should be construed as an important fact
indicating his intention to remain domiciled in Florida.
Respondent also overlooks the very critical and important fact that
Decedent affirmatively voted in the November 2008 election in Florida by
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absentee ballot. A449. For purposes of voting, one must vote from one’s domicile
since, “a ‘voting residence’ as distinguished from a place where one actually and
habitually dwells is not recognized by law.” Matter of Sumner, 102 N.Y.S.2d 478,
487 (Surr. Ct., N.Y. Cnty. 1951). The Surrogate in Sumner concluded it must be
assumed that the Sumner decedent “did not intend to violate the law.” Id. The
same must be said for Decedent Kenneth Ranftle.
The Surrogate’s Court’s conclusion that Decedent’s voting in Florida is an
anomaly does not legally square with the importance of Decedent’s intentionally
acting on his right and privilege to vote in Florida mere days before his death and
months after his marriage to Respondent.
Decedent’s continued legal connections with Florida evidenced by the
Stipulated Facts of his Homestead Exemption, his car registrations, driver’s
license and, critically, his voting in Florida were not “mere passive acts of
omission” as the Appellate Division determined them to be, nor were these facts
“passive inaction” as the Surrogate’s Court determined. These continued
connections, along with Decedent’s clear declaration in his Will of being
domiciled in Florida, leave this Court with no other conclusion but that
Respondent failed to prove by clear and convincing evidence that Decedent
changed his domicile from Florida to New York.
5. Respondent Applies the Wrong Statute in Arguing That Appellant
Was Not Entitled to Citation in the Probate Proceeding.
The issue of decedent’s domicile is germane to whether Appellant is entitled
to citation. The Probate decree had been issued pursuant to SCPA 205. SCPA
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1410 grants Appellant standing to contest the Will because of the reduction of
Appellant’s bequests from the earlier will.
6. Respondent Disregards the Fact That Appellant Raised Discovery
Issues at Surrogate’s Court Which Are Included in the Appendix on Appeal.
Appellant raised the issue of discovery at Surrogate’s Court in his Verified
Reply. A259-A281. In his Verified Reply, Appellant’s attorney, Allan R. Lipman,
argued for Appellant’s right to discovery. A272-A274, A278, ¶ 6-A281.
Appellant’s attorney, Harvey L. Greenberg, filed a motion to extend the
time to perfect the appeal because numerous documents are missing from the
Surrogate’s Court. In his August 28, 2012 affirmation, Mr. Greenberg affirms that
he intends to file an appeal on the full record. Mr. Greenberg also affirms:
“The Record on Appeal will need to include documents
exchanged prior to my retention in the case. I am not in possession of
all these documents and a significant amount of these documents are
not at the Surrogate's Court, without explanation. We have followed
up with the record room and the Probate Department in an attempt to
rectify the matter. We have yet to be provided with a response as to
the missing documents.
Clearly, we seek to have the record be complete.”
Respondent cannot logically argue that discovery was not sought when the
requests are set forth in the Appendix and Appellant’s attorney at Surrogate’s
Court and the Appellate Division has affirmed on a motion to the Appellate
Division that the Surrogate’s Court file was incomplete and thereby prevented
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Appellant from appealing on a full record.
7. Appellant’s Continued Objections to the Rule 500.11 Procedure.
Due to the multitude of errors by the Courts below, the creation of an
entirely new standard for determining whether a Decedent has changed domicile,
and the multitude and complexity of issues that need to be reviewed, including
those not raised in the underlying appeal at the Appellate Division and Respondent
raising the issue of same sex marriage, Appellant respectfully requests that this
Appeal proceed in the normal course of full briefing and argument.
CONCLUSION
Based on the foregoing, Appellant respectfully requests that the decision of
the Appellate Division be reversed and that the underlying proceeding be
remanded to Surrogate’s Court for further proceedings with Decedent as a Florida
Domiciliary and that Appellant proceed to challenge the Probate Decree with full
discovery.
/s/ electronically signed
Nicholas A. Penkovsky, Esq.
LAW OFFICES OF
NICHOLAS A. PENKOVSKY, PC
Attorney for Petitioner-Appellant
One Riverdale Avenue, Suite 1 East, #12
Riverdale, New York 10463
Telephone (347) 603-7676
E-Mail: Nick@photolaw4u.com
COURT OF APPEALS
STATE OF NEW YORK
------------------------------------------------------------------X
Matter of Ranftle (Deceased)
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APL-2013-00306
AFFIRMATION OF
SERVICE
NICHOLAS A. PENKOVSKY, an attorney admitted to practice before the
Courts of the State of New York affirms under the penalties of perjury:
I am not a party to this action, am an attorney at law licensed to practice
before the courts of this state, am the attorney for the petitioner-appellant herein,
am over the age of eighteen years and reside in the State of New York at One
Riverdale Avenue, Suite 1 East, # 12, Riverdale, NY 10463.
That on December 30, 2013, I served the within REPLY LETTER BRIEF
by FedEx Overnight Service upon, WEISS, BUELL & BELL, 11 Park Place, Suite
606, New York, New York 10007 and LAMBDA LEGAL, 120 Wall Street, 19th
Floor, New York, New York 10005, both firms being the Attorneys for
Respondent J. Craig Leiby at the aforementioned addresses designated by said
respective attorneys for the service of papers by depositing same with FedEx
within the State of New York in a sealed envelope with postage prepaid.
Dated: Riverdale, NY
December 30, 2013
/s/ electronically signed
Nicholas A. Penkovsky, Esq.
LAW OFFICES OF NICHOLAS A.
PENKOVSKY, PC
Attorney for Appellant Ronald Ranftle
One Riverdale Avenue, Suite 1, #12
Riverdale, New York 10463
Telephone (347) 603-7676
Facsimile (347) 603-7676
E-mail: Nick@photolaw4u.com