Allen's Estate, In re

Decision Date08 December 1970
Citation316 N.Y.S.2d 352,64 Misc.2d 920
PartiesIn re Proceeding for Letter of Administration, ESTATE of Eugene John ALLEN, Deceased. Surrogate's Court, Nassau County
CourtNew York Surrogate Court

Louis J. Castellano, Jr., Valley Stream, for petitioner.

Montfort, Healy, McGuire & Salley, Garden City, for objectioner.

John L. Molloy, Westbury, for Public Administrator.

JOHN D. BENNETT, Surrogate.

This is a contested proceeding for issuance of letters of administration upon the estate of a non-domiciliary of New York who died in the State of Maine as the result of an automobile accident which occurred while he was allegedly driving himself and two other members of the United States Air Force from a visit to a night club located near York, Maine. At the time of the accident the three men were on their way back to the Air Force base where they were stationed in New Hampshire.

The petitioner here resides in Staten Island, New York, and is the duly appointed administratrix of the Estate of Ralph E. Fulmer, a New York resident, one of the other men killed in the accident.

The decedent, being a non-domiciliary, the jurisdiction of this court depends upon the question whether the decedent left property in this county. The court entertained the petition herein under SCPA 208, subdivision 1, because of the existence of a debt in favor of the decedent against the Criterion Insurance Company which the petition indicated is authorized to do business in the State of New York, having its principal office in this state at Garden City, in this county. Implicit in this court's decision of September 30, 1970, which cited Matter of Riggle, 11 N.Y.2d 73, 226 N.Y.S.2d 416, 181 N.E.2d 436, and Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312, is the conclusion that the policy of liability insurance constituted a 'debt' within the meaning of the statute (see Practice Commentary by Prof. Siegel on SCPA 208, as published in McKinney's, p. 197 et seq.).

The Criterion Insurance Company has now appeared as a respondent and contests the jurisdiction of this court. The carrier does not deny the existence of its office in this county and concedes that it issued and delivered a policy to or for the benefit of this decedent, Allen. It objects to the policy being considered a debt in Nassau County because the policy here was allegedly delivered in New Hampshire, thereby distinguishing this case from Matter of Riggle (supra). This fact, however has no significance because, for jurisdictional purposes, the place where the obligation arose, or where the policy was delivered is unimportant. The policy itself has not been produced and the carrier has not raised any question regarding the contents or any terms and conditions expressed in the policy. Neither does the carrier contradict the statement in the petition that it does have its principal office in this state at Garden City, Nassau County.

This court draws the same conclusion as did Professor Siegel in his Commentary (supra, p. 199), that 'neither the liability insurer * * * nor the life insurer need be domestic insurers to fall under SCPA 208. It is sufficient if they are regularly doing business here. Given that, the county of the insurer's principal office in New York would be the situs of the insurance debt under SCPA 208.' Even if it were to be assumed that the carrier has a 'presence,' and that the decedent is owed the debt, in other counties of New York State, the fact is that no other Surrogate's Court has exercised jurisdiction over this estate. It appears that the express language of SCPA 205 and 207 would therefore also apply. The latter section especially is directed to jurisdiction obtained by virtue of property of a non-domiciliary decedent, and it expressly authorizes this court to retain jurisdiction of this estate after having entertained the petition.

Contrary to the carrir's contention, the court does not consider this to be an unwarranted extension of New York jurisdiction over non-domiciliaries. The State Legislature has expressly recognized the necessity of administering the assets of non-domiciliaries and has authorized this court and its counterpart in other counties to appoint and to supervise the activities of a representative here. Accordingly, whether in an original or an ancillary administration, any assets found in this jurisdiction will be marshaled and the rights of non-domiciliary decedents must be enforced. The court holds that it has jurisdiction by virtue of SCPA 205, 206, 207 and 208. Within the meaning of those sections the Estate of Ralph E. Fulmer is a creditor of the Estate of Eugene John Allen, since it is claimed that the former died as the result of the negligence of the latter, and the insurance policy or obligation is a debt owed to this Estate of Allen by the insurance...

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2 cases
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    • United States
    • New York Surrogate Court
    • July 23, 1980
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