In the Matter of H. Kenneth Ranftle,, Deceased.
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Ronald J. Ranftle, Appellant, J. Craig Leiby, Respondent.

Brief

N.Y.March 26, 2014

1 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 20, 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”), the brother of Decedent, H. Kenneth Ranftle, a/k/a Howard Kenneth Ranftle, Jr., a/k/a Kenneth Ranftle (“Decedent”), submits this Letter Brief pursuant to Court of Appeals, State of New York Rule of Practice 22 N.Y.C.R.R. 500.11, and the November 1, 2013 letter from Chief Clerk Andrew W. Klein advising counsel for the parties to this Appeal that this Honorable Court has selected the Alternative Procedure for this Appeal. As set forth herein, Appellant respectfully submits that both the Surrogate’s Court, New York County (See Exhibit 1, Post-Hearing Decision entered September 14, 2011), and the Appellate Division, First Department (See Exhibit 2, Decision and Order, entered July 2, 2013) both erred when those honorable courts determined that (1) Decedent died as a domiciliary of the State of New York, and (2) rewrote that provision of Decedent’s August 12, 2008 Last Will and Testament 2 (“Will”) in which Decedent declared that he was a domiciliary of the State of Florida and these courts disregarded Decedent’s clear language and thereby erroneously held that his clear declaration of domicile in Florida was instead, “a scrivener’s error.” Exhibit 1 at p. 6; Exhibit 2 at pp. 9 and 14, dissent at p. 15. Appellant respectfully submits that the majority decision of the Appellate Division, First Department, reported at Matter of Ranftle, 108 A.D.3d 437 (1st Dep’t 2013), is erroneous as a matter of law when it affirmed the erroneous decision of the Surrogate’s Court, New York County. Appellant respectfully asks that this Court reverse the decision of the Appellate Division, First Department. 1. Preliminary Statement. This appeal comes before this Court pursuant to an Order of the Appellate Division, First Department made as a matter of law and entered on October 15, 2013, granting Appellant’s motion for leave to appeal to this Court. See Exhibit 3 appended hereto. Appellant respectfully submits that this Court must reverse the erroneous decisions of the Courts below which held that Decedent had changed his domicile from the State Florida where he had been domiciled since 2003 until his death, to New York State, where he died in November 2008. These decisions entirely disregarded that Decedent repeatedly had declared that he was domiciled in Florida in each of his wills in the record, and which he had prepared and executed since 2003, including the Propounded Will which he executed in August 2008. 3 The Courts below also erroneously placed the burden of proof on Appellant to prove by clear and convincing evidence that Decedent had not changed his domicile from Florida to New York State. This error changed well-settled law in this State, and precedents of this Court. In Surrogate’s Court, Respondent Craig Leiby (“Respondent”), Decedent’s spouse and the primary beneficiary of Decedent’s August 2008 Will, was the proponent of the claim that Decedent had changed his domicile from Florida to New York State. The law is well-settled that the proponent of a change in domicile must prove by clear and convincing evidence that the non-domiciliary testator took affirmative steps to effect a change in the testator’s domicile. In all the courts below, Respondent argued that this case was about his marriage to Decedent and not Decedent’s intentional choice of Florida as his domicile. Respondent’s evidence in the courts below failed to establish that Decedent changed his domicile to New York State. The evidence showed that Decedent never took any affirmative action, or stated any intention, to change his domicile from Florida even while staying in New York State in an apartment he owned with Respondent while Decedent was undergoing intense medical treatments from March 2008, when Decedent was first diagnosed with cancer, and continued until shortly before his death on November 1, 2008. The Appellate Division erroneously affirmed the Surrogate’s Court’s Decision by improperly holding that Decedent’s “mere passive acts of omission” established a change in his domicile from Florida to New York. The Appellate 4 Division’s decision created an entirely new legal standard for proving a change in domicile and in so doing, failed to follow well-settled law. 2. Brief Statement of the Relevant Facts. The record establishes that Decedent H. Kenneth Ranftle was an intelligent man and scrupulous in attending to the management of his personal, financial and testamentary affairs. In 2003, Decedent declared himself to be a Florida domiciliary. Decedent purposefully chose his Florida domicile because of that state’s tax advantages for him. A336-337, p.38, ll.6-21. Decedent continued to maintain a New York residence after establishing his Florida domicile. He kept contemporaneous records of the calendar of days he spent outside of New York as proof to New York tax authorities that, as a Florida domiciliary, he could file his New York State taxes as a non-resident of New York. A337-338, Trial Transcript at p.39, l.14 - p.40, l.4. During his lifetime, Decedent had considerable interests in real property in the United States and Canada. He either owned or co-owned homes on Fire Island, New York, a condominium in New York City that he co-owned with Respondent, and a home in Montreal, Canada that he also co-owned with Respondent. Decedent owned his home in Fort Lauderdale, Florida in his sole interest and he claimed a Homestead Exemption on his home thereby clearly declaring his Florida home as his domicile. This Homestead Exemption was automatically renewed on March 1 of each year including March 1, 2008. A297, ¶ 35, Stipulation as to Uncontested Facts, A292-298. A false statement or false claim for 5 a Florida Homestead Exemption incurs “strong penalties,” including the loss of the homestead exemption for the ten years prior, plus penalties and interest. A253- 254. On April 15, 2008, Decedent placed his Fort Lauderdale home in a Revocable Trust for the benefit of Respondent. A652-657, A315. Decedent also executed a Quit Claim Deed for this home to become the revocable trust’s res. A661-662. Decedent executed his Revocable Trust instrument under the laws of Florida [A656, Article XI], and declared Florida as his domicile. A652, “Declaration.” Decedent declared his post office address as ****** North Lauderdale Beach Boulevard, Fort Lauderdale, Florida in the Quit Claim Deed dated April 15, 2008. A661. 2.a.i. Decedent’s Tax Returns During His Life From 2003 to 2008. From 2003 until his death, Decedent filed his personal income taxes as a non-resident of New York and a resident of Florida. A296 at ¶ 30. Perhaps it was due to his illness that Decedent did not file his 2007 Tax returns until July 2008. Those returns were prepared with Decedent’s long time accountant, Kenneth Lynch, CPA. A798-858. In July 2008, Decedent also made an advance payment on his 2008 New York taxes as a non-resident when he filed his 2007 New York State Non-Resident Return. A847-850, and A850 at l.69, A857-858. 2.a. ii. Decedent’s Tax Returns After His Death. After Decedent died, Respondent and Attorney Erica Bell, acting on behalf of Decedent’s Estate, filed Decedent’s 2008 taxes. In order to prepare Decedent’s 6 2008 tax returns, the Estate hired Barbara Morea, instead of Decedent’s long time accountant, Kenneth Lynch. In preparing Decedent’s 2008 tax returns, Ms. Morea acted upon incomplete and biased information from the Estate, and erroneously determined that Decedent could not file 2008 New York Non-Resident Tax Returns. Ms. Morea, testified that she was not aware that Decedent had come to New York for medical treatment and then had become severely ill. She also did not know that it was this illness that necessitated Decedent’s remaining in New York for treatment. A401-402, pp. 103:19-104:2. Ms. Morea’s decision to file Decedent’s 2008 New York State personal Income taxes as a New York State resident was made only after Decedent’s death and was influenced by information provided to her by Attorney Erica Bell and Respondent, the same people who hired, and paid Ms. Morea. A391-393 at pp. 93:26-94:9. Ms. Morea’s opinion of Decedent’s domicile was thus founded upon incomplete and incorrect information. Despite Respondent’s having claimed Decedent was a New York State resident and domiciliary, Respondent also paid Florida taxes on behalf of Decedent’s estate on January 27, 2009 and claimed the Florida Homestead Exemption. A457, Notice of Ad Valorem Tax and Non-Ad Valorem Assessment for Florida Property. Appellant’s trial attorney, Allan R. Lipman, understood Respondent’s Attorney Erica Bell to say that Respondent made the determination to assert that Decedent was domiciled in New York only after Decedent’s death so Respondent 7 could claim the marital deduction under Decedent’s New York Resident Estate Tax Return. A129, Affidavit of Allan R. Lipman in Support of Motion at Paragraph 24. 2.b. Decedent’s Testamentary Documents. The record shows that from 2006 through 2008, Decedent executed four wills and one codicil. In all of these testamentary documents, Decedent referred to the State of Florida. In each, he declared Florida to be his permanent domicile. He also declared that while Respondent was to be his Executor, if Respondent failed to qualify, then his named Successor Executor was to act under the applicable laws of Florida. Decedent also declared in his wills and other documents that he lived from time to time in New York, New York. See Propounded Will dated August 12, 2008, A643-651, particularly at A643 and A648, “EIGHTH”; Will dated April 15, 2008, A663-671, particularly at A663 and A668, “EIGHTH”; First Codicil dated September 14, 2006 to Will dated August 22, 2006 A672-674, particularly at A672; Will dated August 22, 2006 at A675-683, particularly at A675 and A680, “EIGHTH”; and March 9, 2006 Will, A684-693, particularly at A684 and A688- 689, “EIGHTH.” See also A296-297 Stipulation as to Uncontested Facts at ¶¶ 29- 31. At the time Decedent executed his April 15, 2008 will, he also executed a Living Will dated April 15, 2008 declaring his domicile to be Florida (A513) and a Durable Power of Attorney dated April 15, 2008 declaring Florida as his domicile. A508-511. 8 Decedent’s April 15, 2008 will left Appellant a significant sum of money, 80,000 shares of stock in Verdant Power, and Decedent’s entire interest in 11-27 Flatbush Avenue, LLC. A663-671, at A664, sub-article (c). On August 12, 2008, Decedent revised his April 15, 2008 will by executing the Propounded Will at issue on this appeal. A643-651. In the Propounded Will, Decedent declared Florida to be his permanent domicile. A643. Decedent also reduced the sum of money left to his brothers, including Appellant. Appellant’s monetary bequest was reduced from $125,000 to $30,000 and, in handwriting, Decedent’s bequest to Appellant of Decedent’s entire interest in 11-27 Flatbush Avenue, LLC was stricken. A664. The handwriting was initialed by Attorney Erica Bell, who not only signed as a witness to Decedent’s August 12, 2008 Will but also executed and Notarized the self-proving affidavit to the Propounded Will. A650-651. Surrogate’s Court improperly reformed this Will holding that Decedent’s declaration that he was domiciled in Florida was a “scrivener’s error.” A643. 2.c. Decedent’s 2008 illness. In March 2008 Decedent came to New York for surgery to correct a heart condition. At that time it was discovered that Decedent was suffering from lung cancer that had metastasized to his brain. A239, A297. Decedent then commenced a series of medical treatments for his cancer that continued until shortly before his death in New York on November 1, 2008. In June 2008, Respondent and Decedent married in Montreal, Canada. 9 A120-121. During the decedent’s course of medical treatment in 2008, Appellant would customarily drive to New York City from his home in Ithaca, New York and stay with Decedent from Monday through Friday. Appellant regarded his brother as his best friend and he cared for him while Respondent was at work. A411-417, p.113, ll.11- p.119, ll.26. On July 7, 2008, despite the close relationship of these brothers, and Appellant’s ongoing care for Decedent, Respondent informed Appellant by telephone that Respondent and Decedent were going to “go it alone” from then on. A419, p. 121, ll.5-11. After that date, Appellant found that when calling his brother the phone lines were often busy and he only saw his brother twice until his brother’s death on November 1, 2008. A419-421, p.121, l.19 - p.123, l.9. 2.d. Decedent’s Continual Conduct as a Florida Domiciliary During His Time in New York While Being Treated for His Illnesses in 2008. Decedent never relinquished his Florida Homestead Exemption during his lifetime. A250-254, A297, ¶ 35, Stipulation as to Uncontested Facts. Having continually voted in Florida since 2003, Decedent again voted by Florida absentee ballot in the 2008 Presidential elections just days before his untimely death. A297, ¶ 32, Id., Florida Voter Lookup Print Out. A449. Decedent kept his vehicles registered in Florida until his death. A297, ¶ 33, Stipulation as to Uncontested Facts. He also kept his Florida Driver’s License until his death. See A297, ¶ 34, Id. While one of Decedent’s two cars was transported from Florida to New York, it was with the intention of moving it to Decedent’s 10 residence in Montreal, Canada. A297, ¶ 34, A297, ¶ 33, and A332-333, at p. 34, l.16 - p. 35, l.7, Direct Examination of Respondent. In all phases of his life and his personal affairs, Decedent remained a Florida domiciliary. 3. ARGUMENT 3.a The Courts Below Erred in Vacating Appellant’s Petition to Set Aside the Probate Decree by Applying the Unprecedented Standard of “Passive Acts of Omission” and “Passive Inaction” and Disregarded Established Law that Required Respondent to Prove by Clear and Convincing Evidence that Decedent Had Affirmatively Acted to Change His Domicile from Florida to New York. The Surrogate’s Court erred when it held that Respondent had proven by clear and convincing evidence that Decedent had change his domicile from Florida to New York State. A7-17. The Surrogate’s Court’s reasoned that Decedent’s declaring in the Propounded Will that he was a domiciliary of Florida, that his continuing his multiple legal and social connections to Florida throughout his life, his assertion of a Florida property tax Homestead Exemption, and his voting in Florida by absentee ballot in the November 2008 elections were all merely “passive inaction” on Decedent’s part. A9, See also Exhibit 1, p. 7. The Appellate Division, with one Justice dissenting erroneously affirmed the Surrogate’s Court. The majority of the Appellate Division erroneously rationalized that Decedent’s “passive acts of omission” were evidence that he intended to change his domicile from Florida to New York State. See Exhibit 2 at p. 9-10. By whatever label, passivity of a domiciliary of another state has never 11 been the legal standard to establish an intent to change his domicile to New York. Presiding Justice John Sweeny filed a memorandum dissenting from the majority opinion. See Exhibit 2 at pp. 12-17. In his dissent, Justice Sweeny correctly found that the “evidence of intent to change domicile, however, is largely ambiguous.” Id. at p.13. Justice Sweeny made it clear that the majority and the Surrogate’s Court failed to distinguish between “residence” and “domicile” as stated on Decedent’s records and that Decedent had maintained a residence in New York and a residence in Florida but that Decedent “specifically references his ‘domicile’ as opposed to residence, as Florida.” Id. Noting Decedent’s meticulous record keeping so as to prove and maintain his Florida domicile, Justice Sweeny wrote, “[Decedent’s] failure to take obvious actions that would demonstrate an unequivocal intention to change that domicile to New York are clearly inconsistent with any fixed intention to abandon Florida as his domicile.” Id. at pp. 13-14. Justice Sweeny concluded that after his review of the record as a whole, Respondent’s proof that Decedent had changed his domicile “is equivocal at best. It is therefore woefully short of the ‘clear and convincing’ standard required in order to prove a change of domicile.” Id. at p.17. This Court should reverse the standard created by the lower courts by which a testator’s passivity changes the testator’s actual domicile to a new domicile. Under this newly created standard, the testator who never intends to change domicile could be found to have changed domicile by leaving intact all connections to the domicile state. 12 3.b. Decedent established a Florida Domicile and Maintained His Florida Domicile Until His Death. The Surrogate’s Court Procedure Act defines domicile as, “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” SURR. CT. PROC. ACT § 103(15) (McKinney 2013). See also Matter of Shindell, 60 A.D.2d 393, 395 (1st Dep’t 1977). “A domicile once established is presumed to continue unless and until a new domicile is acquired.” Matter of Shapiro, 36 Misc. 2d 271, 273 (Surr. Ct. Westchester Cnty. 1962), aff’d 18 A.D.2d 837 (2nd Dep’t 1963) (Citations omitted). A mere change of residence without the requisite intent to abandon one’s domicile leaves the last established domicile unaffected. Matter of Chrisman, 43 A.D.2d 771 (3rd Dep’t 1974). The question of domicile is a mixed question of law and fact. Matter of Newcomb, 192 N.Y. 238, 250 (1908), see also Matter of Shapiro, 36 Misc.2d at 273. The burden of proof always rests upon the party alleging a change in domicile to show by clear and convincing evidence that a decedent had the intent to abandon the former domicile and to acquire another. Matter of Newcomb, 192 N.Y. at 249-250, accord Matter of Shapiro, 36 Misc.2d at 273, see also Matter of Ratkowsky v. Browne, 267 A.D. 643, 646 (3rd Dep’t 1994). In Matter of Newcomb, this Court made it clear that the existing domicile “continues until a new one is acquired.” Matter of Newcomb, 192 N.Y. at 250. The selection of a new domicile “must be followed by proper action.” Id., 192 N.Y. at 251. There must also be an “absolute and fixed intention to abandon one [domicile] and acquire another and the acts of the person affected confirm the 13 intention.” Id., accord Matter of Clute v. Chu, 106 A.D.2d 841, 843 (3rd Dep’t 1984). Clear and convincing evidence is established by examining “the decedent’s intention from her acts, statements and conduct. The element of intent is essential.” Matter of Urdang, 194 A.D.2d 615 (2nd Dep’t 1993) (citations omitted). The Courts below cannot square Decedent’s purported “passive acts” as a suitable legal substitute for the requirement that a testator take “proper action.” See Matter of Newcomb, 192 N.Y. at 251. Decedent never took any affirmative action to change his Florida domicile to New York. The Courts below erred when they failed to observe the presumption that Decedent, having acquired his Florida domicile, did not then acquire a New York domicile when he came to New York in March 2008. It was usual for him to travel to New York to be with Respondent. Although Decedent maintained his New York residence, he was always careful to limit his presence in New York to fewer than 183 days and he kept scrupulous records to prove that he was domiciled in Florida and to pay New York taxes as a nonresident of New York. Decedent came from his Florida domicile to his New York residence in March 2008 to undergo pre-surgical procedures for surgery intended to correct his heart condition. Decedent then remained in New York after those tests disclosed that he had cancer. He remained in New York because his doctors were in New York and he received treatment related to his cancer until shortly before he died of 14 a heart attack on November 1, 2008. Despite having homes in no fewer than two states and in two countries, Decedent had chosen Florida as his domicile since 2003. Throughout that time, Decedent continually declared Florida as his domicile through 2008, the year that he died. A294, ¶¶ 13, 14, A296-297, ¶¶ 28, 29, 30, 32, 33, 34. Decedent also maintained all of his legal and tax connections to his Florida domicile along with significant personal contacts with Florida. Notably, Decedent never sold his house in Broward County, Florida where he lived, and was domiciled. Instead he placed it into a trust for Respondent. A346, l.7 - A349, l.19; Exhibits G - I at A453-457, Homestead Exemption A250-254. By maintaining his Homestead Exemption, Decedent evidenced his intent to remain domiciled in Florida. See Will of Anthony Lavigna, Sr., 2012/593 N.Y.L.J. 1202571064791 (Surr. Ct., Kings Cnty., decided August 31, 2012). Decedent maintained the registrations for his cars in Florida and he never changed his Florida’s driver’s license to a New York license. A297. Although one car was eventually delivered to New York, it was Decedent and Respondent’s intention to move that car to Canada and for it to remain in New York only temporarily. A332-333, Trial Transcript at p. 34, l.16 - p. 35, l.7, Direct Examination of Respondent. Decedent’s other car remained in Florida. A622, Asset Chart, “Other Property,” listing a 2007 Honda Pilot and a Mustang of an indeterminate year. Until his death, Decedent was on the board of the National Gay and Lesbian 15 Task Force in Florida, and Decedent was always present for the Task Force’s winter party, even attending the party in Florida in 2008. Decedent also had always attended all of the Task Force’s events in Florida. A330, ll.16-21. Decedent’s domicile in Florida was not changed by his July 2008 marriage to Respondent in Montreal Canada. The Canadian Dispensation of the Publication of Marriage states Decedent and Respondent’s residence as New York. A618. This Canadian document merely affirms the American legal maxim that a person may have more than one residence but only one domicile. The Canadian declaration of domicile and residence appears to have some legal effect under the Civil Code of Quebec and creates rights and obligations in each spouse as to the family residence and its property, including those concerning alienation of the family residence and its movable property, transfers of leases, rights to claim damages, rights of possession and ownership of the residence and its movable property. (Chapter IV, “Effects of Marriage,” Division II, “Family Residence,” Rules 401 - 413), 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.” Significantly there has never been any determination of the relevance of Canadian law to the Canadian documents, or that neither Decedent nor Respondent claims Canadian citizenship nor designated their Montreal apartment 16 as a domicile in the Canadian documents. The Canadian marriage documents do not prove by clear and convincing evidence that Decedent changed his domicile to New York. At best, they show a conflict. Where facts are conflicting, there is a strong presumption in favor of the former domicile as against a purported newly acquired domicile. Matter of Ratkowsky v. Browne, 267 A.D. at 646. Respondent cannot prove by clear and convincing evidence by the Canadian documents that Decedent had a definite purpose to give up Florida as his domicile and take up a new place, New York, as his domicile. See Matter of Ratkowsky v. Browne, 267 A.D. at 646 (Citations omitted) (Internal quotations omitted). Decedent’s mobility had also become difficult in the last months of his life. Before coming to New York for treatment, he had collapsed in February 2008 at a concert in New York’s Lincoln Center. A352, ll.13. A couple of months later, Decedent began undergoing serious cancer treatments in New York. A352, l.26 - A354, l.7, A354, l.6. Decedent also fell on his trip to California in September 2008, where he and Respondent had traveled to attend a wedding and, as a result, Decedent was unable to attend the reception. A424, ll.4-26. It is equally clear that Decedent was required to see his New York doctors for his continued care. A398, ll.2-6. Decedent’s difficulty in ambulating also resulted in his being limited to a few blocks not far from home and he was confined to using a motor scooter to get around. A333, l.19 - A334, l.17, A400, ll.9-15, A401, l.19 - A402, l.2. Decedent had always spent a significant time in New York while Notably, while the Appellate Division Majority erroneously relied upon these factors as an1 affirmative intent to change domicile, the majority referred to these factors as “further affirmative steps to establish residence in New York. Exhibit 2, at p.7. The issue however, has always been whether these factors demonstrate an affirmative step to change domicile. As set forth herein, Appellant argues that they do not demonstrate a change in domicile. 17 maintaining his Florida domicile. However, Surrogate Court misstates the substance of New York State Tax Law § 605 in its Decision. A 9-10, n.7, Exhibit 1 at pp. 3-4, n.7. The purpose of Decedent’s diary was to show that he, as a non- domiciliary, did not spend more than 183 days in New York State. See N.Y. TAX L.§ 605(b)(B). McKinney 2013. Surrogate’s Court erroneously interpreted the Tax Law as a requirement that a domiciliary spend 183 days or more in the state of domicile. This likely influenced that Court’s erroneous domicile decision. 3.c. Decedent’s Financial Affairs and Tax Matters Are Not Evidence of His Intention to Change His Domicile to New York. The Appellate Division incorrectly agreed with Surrogate’s Court that Decedent’s applying for Social Security from his New York address when he turned 65 in July 2008, and his changing his address on some of his financial and investment accounts from Florida to his New York address are determinative factors to affirm the Surrogate’s Court finding that Decedent had changed his domicile. See Exhibit 1 at pp. 5-6, A11-12, see also Exhibit 2, at p.7 . The Courts1 below, however, failed to place these financial factors into their proper legal and precedential contexts. In Matter of Newcomb, the testator’s domicile was determined to be the State of Louisiana. Matter of Newcomb, 192 N.Y.2d 238. This finding was made despite testator’s financial contacts with New York State. All the time the testator 18 was domiciled in Louisiana, “her bank account was kept in the city of New York, her estate was managed there, and her only safe deposit box was there, except one in Jersey City during the last year of her life. She left some, but not much, of her clothing there, and her regular physician resided there.” Id. 192 N.Y. at 249. She returned to Louisiana from New York or other travels “every year except when prevented by illness.” Id. She also made a Will and other documents in which she declared her domicile to be Louisiana despite her traveling extensively away from Louisiana. Id. 192 N.Y. at 248-249. Decedent’s application for Social Security, made in July 2008, occurred because the Social Security Administration had contacted Decedent at his Florida domicile in May 2008 in anticipation of Decedent’s upcoming 65th birthday. A708-725. However, Decedent’s 1099 tax forms were mailed to him in both New York and Florida. A392, ll.18-22, A728-731. In July 2008 when Decedent filed his 2007 New York Non-Resident Income Tax Returns he also made an advance payment on his 2008 New York Non- Resident Income Tax Returns. A850, l.69. A784-785, Exhibit 24. Decedent’s 2008 estimated tax return shows his Florida address. A858. Clearly as late as July 2008, Decedent’s intention was to remain domiciled in Florida. Other than the advance payment on his 2008 taxes to New York State as a nonresident, Decedent never prepared any final 2008 tax returns and never agreed to have Barbara Morea prepare his 2008 tax returns. It was the Estate which rejected Decedent’s longtime tax preparer Mr. Lynch and instead retained Ms. 19 Morea to prepare Decedent’s 2008 tax returns after Decedent’s death. Ms. Morea never knew Decedent was seriously ill and was under intensive medical care. She prepared Decedent’s income tax returns without any knowledge as to his illness as the reason for his being present in New York. A393, ll.12-26, A398, ll.25-26, A401, l.19-A402, l.2. Similar, to the testator in Matter of Newcomb, Decedent traveled extensively, maintained some financial interests in New York, but declared his domicile to be Florida and acted in conformity with the laws of Florida and enjoyed its benefits. Conclusively, and in accord with Matter of Newcomb, Decedent was not domiciled in New York, but instead in his chosen domicile in the State of Florida. 3.d. Decedent’s Medical Treatment in New York Was Not an Affirmative Act in Furtherance of His Changing His Domicile from Florida. A non-domiciliary who seeks treatment in New York for the non- domiciliary’s serious illness is not considered to have become a resident in New York State for tax purposes. Stranahan v. New York State Tax Commission, 68 A.D.2d 250, 254 (3rd Dep’t 1979). In Stranahan, the Third Department specifically rejected the Commission’s argument that under New York State Tax Law § 605, a non-domiciliary’s maintaining a permanent place of abode in New York created a tax liability when that individual comes into the state for the “purpose of obtaining medical treatment and is prevented from leaving the State before the expiration of 183 days by reason of physical condition and [an] inability to return to Florida.” Id., 68 A.D.2d at 254. 20 Similarly here, Decedent came to New York for medical treatment and by a combination of the serious cancer treatments he was receiving, the daily care he was receiving from his brother, Appellant, and from Respondent, both of whom lived in New York, and Decedent’s subsequent significant loss of motor skills, all worked to prevent Decedent from returning to his Florida domicile. As Stranahan notes, it is not unusual for a person to seek the “most advanced facilities” for treatment of an illness. In Stranahan, the petitioner, a Florida domiciliary became ill in Mexico and, just like Decedent had, sought treatment at Sloan Kettering for her condition. Id. 68 A.D.2d at 251. In matters not controlled by state taxes, New York State Courts have also recognized that a non-domiciliary receiving medical treatment does not change domicile to the place where treatment is being received, even when the non- domiciliary dies outside the place of domicile. In Matter of Urdang, the testator left her domicile in Brooklyn and entered a nursing home in the Bronx where she subsequently died. Matter of Urdang, 194 A.D. 615 (2nd Dep’t 1993). The Second Department held that the decedent remained a domiciliary of Brooklyn, despite her Brooklyn residence being sold while she was in the nursing home, because that sale did not preclude her returning to her Brooklyn home or even the borough of Brooklyn where her home had been. Id., 194 A.D. at 616. There is no issue here of Decedent’s home being sold while he remained in New York for medical treatment. Decedent’s Florida home remained available to him to return to at the conclusion of his medical treatment. Similar to the testator 21 in Urdang, Decedent died while under the care of his doctors. Decedent’s continued stay in New York for medical treatment and his subsequent death in New York before he could return to his home in Florida did not result in a change in his domicile from Florida to New York. 3.e. The Court’s Below Erred When They Held That Decedent’s Clear Declaration in His Propounded Will that He Is Domiciled in Florida Was Actually a Scrivener’s Error. Indisputably Decedent was of sound mind when he prepared his Will in which he declares that he is a domiciliary of Florida. A440-448. All of his “estate planning documents (health care proxy, living will, durable power of attorney, last will and testament) specifically declared Florida as his ‘domicile,’ while simultaneously declaring that he resided from ‘time to time’ in New York.” See Exhibit 1, p. 15, A652-660, A661-662, A663-667, A672-674, A675-683, A684-693, A694-699, A700-707. The courts below seriously erred when they held that the Decedent’s declaration of domicile was a scrivener’s error. There is consistency in all of Decedent’s other wills and codicils since 2006, and Decedent’s entire testamentary plan, declaring his domicile to be Florida and a provision in his August 12, 2008 Will for the appointment of an executor in Florida for the probate of his will. A445 at “EIGHTH,” First Paragraph. “When the purpose of a testator is reasonably clear by reading his words in their natural and common sense, the courts have not the right to annul or pervert that purpose upon the ground that a consequence of it might not have been thought 22 of or intended by him.” Matter of Tamargo, 220 N.Y. 225, 228 (1917), accord Matter of Dickinson, 273 A.D.2d 89, 90 (1st Dep’t 2000). The law is unequivocal on this issue. Decedent’s words are clear and his purpose and intention of remaining a Florida domiciliary can be readily understood by reading his words in his Last Will and Testament. The Surrogate’s Court was clearly in error to even accept any testimony about Decedent’s intention in his Will because “courts have not the right to annul or pervert that purpose upon the ground that a consequence of it might not have been thought of or intended by him.” Id., 273 A.D.2d at 90. The testimony relied upon by Surrogate’s Court becomes even more questionable because it was received from Respondent’s attorney, Erica Bell who also drafted the Propounded Will, signed as a witness to its execution, initialed its handwritten modification, and signed and notarized the self-proving affidavit as to the signing of the Will being witnessed. A447-448. Attorneys’ affidavits alleging a contradictory intent in a will are inadmissible when the “will provisions are unambiguous.” Matter of Walker, 64 N.Y.2d 354, 358 (1985). Clearly, the unambiguous language in Decedent’s Propounded Will as to his domicile prohibited the extrinsic evidence of Attorney Bell’s testimony. 3.f. The Courts Below Erred When They Held That the Estate Was Not Required to Serve Appellant With a Citation. The Courts below also misapplied the Surrogate’s Court Procedure Act § 1403(d) that states, “[i]n a proceeding for the probate of a will process must issue to the following persons if not petitioners: (d) Any person designated as 23 beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate.” (McKinney’s 2013). In answer to Appellant’s Surrogate’s Court Petition, Respondent filed Decedent’s April 2008 will. In that will, Appellant’s inheritance was substantially greater than what he received under in the August 2008 Propounded Will. Appellant’s interests in Decedent’s estate were seriously affected by the changes to the April 2008 will. Compare A240-248, particularly at A240-241, with A643- 652, particularly at A644. It is the preferred practice to file the prior will where a proponent of the later will knows that the prior will exists and to cite all legatees named in a prior will. In re Bennett's Will, 109 N.Y.S.2d 315 (1951). Appellant raises the serious question as the reasons respondent did not file the April 2008 will that was executed before respondent informed Appellant in July 2008 that he and Decedent wanted to go it alone. A419. 4. Additional Issues Not Raised on the Appellate Division Appeal But Which Should Is Addressed by This Court. 4. a. Appellant Was Entitled to Full Discovery in Surrogate’s Court. Surrogate’s Court never ruled on Appellant’s discovery motions for the discovery he requested as to Decedent’s travel, medical and other records and materials. New York State Law requires that, “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless 24 of the burden of proof.” CIV. PRAC. L. & R. 3101 (McKinney 2013). Appellant had filed a motion for discovery but it was never decided. As a consequence, Appellant, whose bequest in the April 2008 will was significantly and irreparably reduced by a handwritten line being drawn through a significant bequest that had been typewritten in the Propounded Will, was not permitted to depose witnesses to the Propounded Will. Notwithstanding Surrogate’s Court denying Appellant his rights to discovery, Surrogate’s Court proceeded to hear his Petition and ultimately bound Appellant to its Decision on Decedent’s domicile and Appellant’s bequest under the Propounded Will. Appellant should have full discovery to afford him a full and fair opportunity to prosecute his Petition to vacate the decree that admitted Decedent’s August 2008 Will to probate. Appellant’s need for discovery becomes even more compelling when this Court considers that Surrogate’s Court reached its decision by erroneously reasoning that “the extensive proof presented by [Respondent] tell a compelling and convincing story that answers and/or overcomes [Appellant’s] arguments.” Exhibit 1 at p.3, A9. b. Erica Bell Should Not Have Served In Multiple Capacities As Drafter of, and Witness to, the Will, and Then Appeared as Advocate for the Estate and Also Testified As a Witness in The Surrogate’s Court Proceeding. Attorney Bell drafted Decedent’s Propounded Will and his other wills and all of his New York testamentary documents. Attorney Bell has also been the Advocate on behalf of the Estate and clearly on behalf of Respondent. At the hearing in Surrogate’s Court, Attorney Bell also testified as a Witness. 25 Rule 3.7 of the Code of Professional Responsibility absolutely prohibits an attorney from acting as both an advocate before a tribunal and as a witness on a disputed issue. New York Rule of Professional Conduct 3.7. While certainly Attorney Bell should not be permitted to act as the Advocate for respondent in further proceedings in Surrogate’s Court, this Court must also decide whether it is appropriate for this Court to accept any submissions from Attorney Bell on this appeal. 5. Appellant’s Request to File and Serve a Reply Pursuant to Court of Appeals, State of New York Rule of Practice 22 N.Y.C.R.R. 500.11(e). Appellant respectfully requests that this Court authorize Appellant to file and serve a Reply to Respondent’s submission pursuant to Court of Appeals, State of New York Rule of Practice 22 N.Y.C.R.R. 500.11(d) and the November 1, 2013 letter from Chief Clerk Andrew W. Klein advising counsel for the parties to this Appeal that this Honorable Court has selected the Alternative Procedure for this Appeal. 6. Appellant’s 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 testator has changed domicile, Attorney Bell’s appearance in all phases of this litigation, and the multitude and complexity of issues that need to be reviewed, including those not raised in the underlying appeal at the Appellate Division, 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 . &dl~Q.· . ~ Nicholas A. Penkovsky, E~ LAW OFFICES OF NICHOLAS A. PENKOVSKY, PC Attorney for Petitioner-Appellant One Riverdale A venue, Suite 1 East, # 12 Riverdale, New York 10463 Telephone (347) 603-7676 E-Mail: Nick@photolaw4u.com 26 Exhibit 1 Exhibit 2 Sweeny, J.P., Saxe, Renwick, Freedman, JJ. 9321 In re H. Kenneth Ranftle, etc., File No. 4585/08 Deceased. - - - - - Ronald J. Ranftle, Petitioner-Appellant, J. Craig Leiby. Respondent-Respondent. _________________________ Greenberg & Wilner, LLP, New York (Harvey L. Greenberg of counsel), for appellant. Weiss, Buell & Bell, New York (Erica Bell of counsel), for respondent. _________________________ Order, Surrogate’s Court, New York County (Kristin Booth Glen, S.), entered on or about September 14, 2011, which dismissed the petition for, inter alia, leave to submit objections to the probate of the will, affirmed. Before us is the second proceeding challenging the ongoing probate of the last will of decedent H. Kenneth Ranftle. In December 2008, the Surrogate issued a decree granting probate upon the petition of respondent J. Craig Leiby, who is Ranftle’s surviving husband and the appointed executor of the will (Matter of Ranftle, NYLJ, Feb. 3, 2009 at 27, col 1 [Sur Ct, NY County 2009]). In June 2009, one of Ranftle’s brothers petitioned for vacatur of the probate decree, arguing that recognizing Ranftle’s 4 and Craig’s same-sex marriage in Canada would violate New York’s public policy. The Surrogate denied the petition, finding the public policy argument to be “patently without merit,” and we unanimously affirmed that decision (Matter of Ranftle, 81 AD3d 566, 567 [1st Dept 2011]). In December 2009, another of Ranftle’s brothers filed the petition now before us, claiming that the Surrogate’s Court lacks jurisdiction over the estate’s personal property because Ranftle was domiciled in Florida when he died. In opposition, Leiby contends that, at least six months before his death, Ranftle changed his domicile from Florida to New York. The Surrogate’s Court directed a hearing to determine the question of domicile, after which the Surrogate, in a September 2011 post-hearing decision, found that Leiby had proved by clear and convincing evidence that Ranftle had abandoned his Florida domicile and reestablished domicile in New York. For the reasons set forth below, we affirm. The following facts were either uncontroverted or were adduced at the April 2011 hearing: Ranftle was born in 1943 in New York City and lived there for most of his life. In 1990, Ranftle and Leiby began living together as domestic partners and remained a committed couple until Ranftle’s death. Throughout their relationship, Leiby was domiciled in New York. In 2003, 5 however, Ranftle, who owned a house in Fort Lauderdale, Florida, changed his domicile to Florida because of certain tax benefits. To qualify as a Florida resident for tax purposes, Ranftle kept diaries to show he spent 183 days, or more than one half a year, in the state for each year from 2003 through 2007. From the time Ranftle established Florida domicile in 2003 until he moved back to New York in 2008, Ranftle regularly commuted from Florida to be with Leiby. During that period, Ranftle retained his concert and theater subscriptions and made charitable contributions to New York City institutions. Ranftle’s financial advisor and his doctors and other health care professionals were also based in New York City. In March 2008, Ranftle was diagnosed in New York with stage IV adenocarcinoma of the lung and a metastatic tumor of the brain. He never returned to Florida after his diagnosis, but instead lived until his death with Leiby in their jointly-owned New York City condominium. On May 14, 2008, New York State Governor David Paterson issued an Executive Directive requiring the State’s agencies to recognize same-sex marriages that had been validly contracted in other jurisdictions. Leiby testified that, when Ranftle learned1 In contrast to New York, Florida law prohibited at the1 time, and still prohibits, the recognition of same-sex marriages 6 about the Executive Directive on the same day that it was issued, he immediately proposed to Leiby, who immediately accepted. On June 7, 2008, Ranftle and Leiby married in Montreal, Canada, where they owned an apartment. Canada had extended the legal rights of marriage to same-sex couples in 2005. In accordance with Canadian law, the couple executed a declaration of marriage in which both stated that their “domicile after the marriage” would be their New York City apartment. After the marriage, Ranftle took further affirmative steps to establish residence in New York. These included applying for Social Security from his New York address when he turned 65 in July 2008, shipping his car from Florida to New York, and changing his address of record for his investment accounts and tax documents from that of the Florida house to that of Ranftle’s and Leiby’s New York apartment. In addition, Ranftle’s accountant testified that he had retained her to prepare his tax returns, and when she informed him that he had to file as a New York resident, he assented, but died before any filing took place. On August 12, 2008, Ranftle executed the will admitted for probate. Ranftle’s attorney, who prepared his final will in even if the marriage was valid in the jurisdiction where it was performed (see Fla Stat Ann, tit 43, § 741.212). 7 August 2008, testified at the hearing about what the Surrogate in her September 2011 order described as a “discordant note in this narrative,” namely, that the will recites Florida as Ranftle’s domicile. The attorney stated that the recitation was the result of her own error. Ranftle had asked her to make specific changes from his prior will to, among other things, reflect the new legal status of his relationship with Leiby. Instead of drafting the new will from scratch, the attorney testified, she produced it by revising the word processing file for Ranftle’s prior will, executed while he was a Florida domiciliary. The error had passed unnoticed because both the attorney and Ranftle focused their attention on the dispositional changes Ranftle wanted. On November 1, 2008, Ranftle died suddenly from a heart attack. His diaries indicate that in 2008 he spent only 13 days in Florida, all before his cancer diagnosis, and that apart from brief visits to Montreal and California, he spent the rest of the year in New York. In support of his claim that Ranftle did not change his domicile before his death, petitioner relied on the recitation in the final will, Ranftle’s failure to change his driver’s license, car registration, and Florida homestead declaration, and his vote in Florida by absentee ballot in the November 2008 presidential election. 8 In her post-hearing decision, the Surrogate found that Leiby had proved by clear and convincing evidence that in 2008, “probably at or around the time of his terminal diagnosis, but no later than his marriage,” Ranftle changed his domicile to New York. The Surrogate credited Leiby’s testimony and found that it “[told] a compelling and convincing story that answers and/or overcomes [petitioner’s] arguments.” Ranftle changed his domicile, the Surrogate found, for two reasons: (1) “to be with those he loved, in the city where he had lived and prospered, in the commodious apartment he and his husband owned together” as he faced his mortality; and (2) because New York, unlike Florida, recognized his marriage to Leiby. Finding the testimony of Ranftle’s attorney “highly credible,” the Surrogate held that the last will recited a Florida domicile because of a scrivener’s error that Ranftle failed to notice when he signed the document. The Surrogate held that Ranftle’s vote in Florida by absentee ballot was “an anomaly insufficient to overcome the otherwise compelling evidence that [Ranftle] chose to become, became, and died a domiciliary of New York.” She discounted other factors as mere passive acts of omission. Those passive acts included Rantfle’s failure to amend a quitclaim deed and other documents showing a Florida domicile, all of which Rantfle had executed before he proposed to and 9 married Leiby. Accordingly, the Surrogate dismissed the petition. We see no basis for disturbing the Surrogate’s Court’s finding that Ranftle changed his domicile to New York in the months before his death. The Surrogate’s Court Procedure Act defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). “The determination of an individual’s domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location” (Matter of Clute v Chu, 106 AD2d 841, 843 [3d Dept 1984]). A person’s domicile is generally a mixed question of fact and law, which the court must determine after reviewing the pertinent evidence (see Matter of Brunner, 41 NY2d 917, 918 [1977]). No single factor is dispositive (Matter of Kartiganer v Koenig, 194 AD2d 879, 881 [3d Dept 1993]), and the unique facts and circumstances of each case must be considered (Ruderman v Ruderman, 193 Misc 85, 87 [Sup Ct, NY County 1948], affd 275 AD 834 [1st Dept 1949]). A party alleging a change of domicile has the burden of proving that change by clear and convincing evidence (Gletzer v Harris, 51 AD3d 196, 199 [1st Dept 2008], affd 12 NY3d 468 [2009]). 10 We agree with the Surrogate that Leiby met his burden of proof as to the change of domicile. As noted, petitioner’s scattered evidence that Ranftle remained a Florida domiciliary is overwhelmed by the large and consistent body of evidence showing that Ranftle moved back into the New York City apartment he shared with his husband with the intent of permanently remaining there, and that his change of domicile was motivated both by his grave illness and New York’s recognition of same-sex marriages. As a final matter, petitioner’s contention that SCPA 1403 (1)(c) or (d) required that he be served with a citation is meritless. By their terms, both sections are inapplicable because no other will was filed or offered for probate (see Matter of Dobbs, 23 Misc 3d 1105[A] [Sur Ct, Bronx County 2009]; Matter of Dubelier, 138 Misc 2d 180, 181 [Sur Ct, NY County 1987]). All concur except Sweeny, J.P. who dissents in a memorandum as follows: 11 SWEENY, J.P. (dissenting) Respondent failed to show by clear and convincing evidence that the decedent not only physically resided in New York at the time of his death, but also intended to change his domicile to New York (see Matter of Kartiganer v Koenig, 194 AD2d 879, 880- 881 [3d Dept 1993]; Matter of Shapiro, 36 Misc 2d 271, 273 [Sur Ct, Westchester County 1962], affd 18 AD2d 837 [2d Dept 1963]). I must therefore dissent. It is undisputed that decedent changed his domicile from New York to Florida in 2003. From 2003 to 2007, he kept meticulous records to show that he resided in Florida at least the required minimum of 183 days per year in order to maintain proof of his domicile in that state. In an attempt to demonstrate decedent’s intent to change his domicile to New York, the majority points to the fact that decedent “regularly commuted” to New York, “retained his concert and theater subscriptions and made charitable contributions to New York City institutions.” He also utilized health care professionals in New York City. Decedent used his New York address when he applied for Social Security, had his address changed from Florida to New York for his investment accounts and listed his New York address on his Canadian marriage certificate. He also had one of his vehicles shipped from Florida to New York. 12 None of this is surprising in view of the fact that, on his last trip to New York in 2008, decedent was diagnosed with stage IV adenocarcinoma of the lung and a metastatic tumor of the brain. He was being treated for this condition at Sloan Kettering, one of the premier cancer treatment centers in the world. In fact, the record reveals that his oncologist and radiologist were literally “blocks” from the apartment he owned with respondent. This evidence of intent to change domicile, however, is largely ambiguous. It would, of course, make sense for decedent to have his checks and mail sent to the address where he would be residing and receiving medical treatment for an extended period of time. However, this change of residence does not conclusively demonstrate an intent to change domicile (see Kartiganer, 194 Ad2d at 880-881; Shapiro, 36 Misc2d at 273). Moreover, while the decedent’s Canadian marriage documents reflect the New York residence, other documents show the decedent’s residence as Florida and New York, but specifically reference his “domicile,” as opposed to residence, as Florida. Indeed, the decedent continued to vote in Florida, even doing so while living in New York by absentee ballot a week prior to his death. Additionally, he continued to maintain a house in Florida, and never changed either his Florida driver’s license or the Florida registration 13 of his vehicles. Given decedent’s meticulousness in preparing and maintaining records to prove and maintain his Florida domicile, his failure to take obvious actions that would demonstrate an unequivocal intention to change that domicile to New York are clearly inconsistent with any fixed intention to abandon Florida as his domicile. Decedent’s longtime attorney, who drafted the will at issue testified that the Florida domicile as set forth in that will was merely a “scrivener’s error,” since she had used a prior computer-generated will to make various changes desired by decedent. Attorney statements, while not proof of domiciliary intent in and of themselves, can be considered when supported by decedent’s actions; contrariwise, they may be disregarded when they conflict with such actions (see 2-32 Warren’s Heaton, Surrogate’s Court Practice § 32.11[3][d] at 32-72 [7th ed 2006]). In this case, both decedent’s and his attorney’s actions clearly conflict with her statement. Decedent’s estate planning documents (health care proxy, living will, durable power of attorney, last will and testament) all specifically declared Florida as his “domicile,” while simultaneously declaring that he “resided from time to time” in New York. Significantly, all those documents, as well as the quitclaim deed transferring Florida real property to his revocable trust were prepared and 14 notarized by the same attorney who now inexplicably claims the Florida domicile in his will was a “scrivener’s error.” Further, the quitclaim deed was prepared and signed in close temporal proximity to the will. Although decedent transferred the Florida property into a revocable trust for the benefit of respondent, decedent was the sole trustee of that trust. Notably, that revocable trust instrument also specifically declared decedent’s domicile as Florida. These actions do not support the claim that decedent intended to change his domicile. Moreover, the trust affidavit, filed with the court by respondent postmortem, also listed decedent as a Florida domiciliary. Nor is there support in the record for the majority’s contention that decedent assented to having his taxes filed in New York due to his new status as a New York domiciliary. This claim arises from an accountant’s assertion that, based upon decedent’s change of domicile, she would not be able to file taxes for him as a Florida domiciliary. It should be noted that the record does not reflect that decedent ever filed taxes as a New York domiciliary after 2003. In fact, the tax returns upon which respondent rely to prove decedent’s intention to establish New York as his domicile were filed by respondent after decedent’s death, in his capacity as executor of decedent’s will. 15 Curiously, this filing conflicts with respondent’s postmortem filing of the trust affidavit, which, as noted above, lists Florida as decedent’s domicile. “A domicile once established is presumed to continue unless and until a new domicile is acquired” (Matter of Shapiro, 36 Misc 2d at 273). In order to change domicile, there must be an intention to change domicile coupled with actions consistent with such intent (id.). In determining whether a change in domicile has occurred, “[n]o single factor is controlling and the unique facts and circumstances of each case must be closely considered” (Matter of Gadway, 123 AD2d 83, 85 [3d Dept 1987]). Where the facts are conflicting, the presumption is strongly in favor of the former domicile as against the asserted one (Matter of Ratkowsky v Browne, 267 App Div 643, 646 [3d Dept 1944], lv denied 268 App Div 835 [3d Dept 1944]). The party seeking to establish a change in domicile must do so by clear and convincing evidence” (Matter of Kartiganer, 194 AD2d at 881). To meet this burden, the proponent of the new domicile “must establish the decedent’s intention to effect a change of domicile from [his] acts, statements, and conduct” (Matter of Urdang, 194 AD2d 615, 615 [2d Dept 1993]). 16 Based on my review of the record as a whole, respondent’s proof is equivocal at best. It is therefore woefully short of the “clear and convincing” standard required in order to prove a change of domicile. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JULY 2, 2013 _______________________ CLERK 17 Exhibit 3 At a Term of the Appellate Division of the Supreme Court held in and for the First Judicial Department in the County of New York on October 15, 2013. Present - Hon. John W. Sweeny, Jr., Justice Presiding, David B. Saxe Dianne T. Renwick Helen E. Freedman, Justices. -------------------------------------X In re H. Kenneth Ranftle, etc., Deceased. - - - - - - - - - - - - Ronald J. Ranftle, M-3951 Petitioner-Appellant, File No. 4585/08 J. Craig Leiby, Respondent-Respondent. -------------------------------------X Petitioner-appellant having moved reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on July 2, 2013 (Appeal No. 9321), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion, to the extent it seeks reargument, is denied. The motion, to the extent it seeks leave to appeal to the Court of Appeals, is granted and this Court, pursuant to CPLR 5713, certifies that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: "Was the order of this Court, which affirmed the order of the Surrogate’s Court, properly made?" This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion. ENTER: _____________________ CLERK

In the Matter of H. Kenneth Ranftle,, Deceased. <br />---------------------------------<br /> Ronald J. Ranftle, Appellant, J. Craig Leiby, Respondent.