In re Matarazzo

Decision Date20 July 2021
Docket NumberFile No. 2021-5, File No. 2021-55
Citation148 N.Y.S.3d 896 (Table),72 Misc.3d 1214 (A)
CourtNew York Surrogate Court
Parties Probate Proceeding, WILL OF Ann MATARAZZO, Deceased.

Bluestein, Shapiro, Frank & Barone, LLP, Jacob Tuckfelt, Esq. of counsel, attorney for Movant Joseph Matarazzo, Jr.

Catania, Mahon & Rider, PLLC, Richard M. Mahon, Esq. of counsel, attorney for Petitioner Gerard Matarazzo

Timothy P. McElduff, Jr., S.

The Court received and considered the following papers on Movant/Interested Party Joseph Matarazzo, Jr.’s motion to dismiss the above-captioned probate proceeding for lack of jurisdiction:

1. Movant/Interested Party Joseph Matarazzo, Jr.’s Notice of Motion, Tuckfelt Affirmation, Affidavit of Joseph Matarazzo, Jr. and Exhibits A trough M, filed on April 27, 2021;
2. Mahon Affirmation in Opposition, Affidavit of Petitioner Gerard Matarazzo and Exhibits A through J, and the Affidavit of Lynn Matarazzo filed on June 16, 2021; and
3. Tuckfelt Reply Affirmation with Exhibits 1 through 4, containing the Affidavits of Elizabeth Connolly and Abbie Zola, filed on June 25, 2021.


Petitioner Gerard Matarazzo is the son and nominated sole executor and 50% beneficiary under an instrument purported to be the Last Will and Testament of Ann Matarazzo (the "Deceased") dated April 10, 2014 (the "2014 Will"). The petition herein seeks to probate the 2014 Will.

Movant Joseph Matarazzo, Jr., is the second son of the Deceased and nominated co-executor (with Petitioner) under an instrument purported to be the Last Will and Testament of Ann Matarazzo dated December 21, 2015 (the "2015 Will"). Joseph's beneficial interest under both Wills (12.5%) is the same, as are the beneficial interests of the Deceased's three grandchildren (12.5% each).

The 2015 Will purports to revoke all prior wills, including the 2014 Will. The petition herein (to probate the 2014 Will) makes no reference to the 2015 Will.

Movant Joseph Matarazzo, Jr., has moved to dismiss this proceeding for lack of jurisdiction, arguing that the Deceased was domiciled in New Jersey at the time of her death, a change from her original domicile in New York. Further, the Movant argues that the Deceased, by the time of her death, had insufficient contacts with New York for this Court to sustain jurisdiction over a will of a non-domiciliary pursuant to SCPA §§ 206, 1605.


Petitioner Gerard and Movant Joseph, Jr., are the two children of the Decedent. Gerard lived with his parents (Decedent and Joseph Matarazzo, Sr., the partiesfather) at their home in Malverne, New York beginning in 1986. At around the same time in 1986, Gerard purchased a house located in Greenwood Lake, New York; however, he continued to live with his parents, in Malverne, in order to care for them and handle their personal affairs into their senior years.

In 2009, the partiesfather, Joseph, Sr., died.

In 2010, Gerard got married for the first time at the age of 58.

Joseph, Jr., alleges that the Decedent began living with his family, in Washington, New Jersey, in 2010 following the death of his father, Joseph, Sr. He further alleges that Gerard had little to do with the Decedent from 2010 to 2014, presumably because he had just gotten married for the first time and started living his married life at his home in Greenwood Lake, New York.

Non-party witness Lynn Matarazzo (Gerard's wife) states that the Decedent began living "on and off" with Joseph, Jr. in 2013. She further states that, in 2013, Joseph enrolled the Decedent in senior day care six days a week at a senior center that specialized in dementia /memory care.

Decedent sold her house located in Malverne, New York, in August of 2015, and thereafter resided at Joseph, Jr.’s home in Washington, New Jersey. In 2018, Decedent moved into a nursing home in Pennsylvania. After selling her home in New York, she did not purchase a new residence in New York, New Jersey, or anywhere else. It is undisputed that the Decedent never resided at Gerard's house in Greenwood Lake, New York.

Gerard, however, characterizes the totality of Decedent's residence at Joseph, Jr.’s house in Washington, New Jersey, as "brief" and "temporary," alleging that the Decedent "lived on and off" with Joseph, Jr., from 2013 to 2018. In comparison, Joseph, Jr., alleges the that the Decedent's residence at his home in New Jersey was continuous and exclusive from 2010 to 2018. Gerard alleges that the Decedent stayed with him and his wife from 2013 to 2018 on "numerous weekends." Gerard further alleges that the Decedent asked if she could move in with him; however, Gerard admits that this, "... was not possible because she could not navigate the multiple staircases in my house without assistance and my wife and I were both working." (See Gerard Affidavit in Opposition, 10).

Gerard alleges that he held a power of attorney and health care proxy for the Decedent; however, neither document was submitted as an exhibit in this motion sequence. Notably, however, Gerard's Exhibit F (a letter from his attorney) states that Gerard held power of attorney for the Decedent dated April 10, 2014. From other exhibits, it does appear that Gerard handled many, if not most, of the Decedent's financial affairs, including tax returns, social security benefits/statements, pension benefits/statements, Medicare benefits/statements and financial account/adviser statements, which were, by and large, addressed to Gerard's address in Greenwood Lake, New York. Regarding Decedent's UBS Financial Services investment account statements, as of 2016, UBS mailed them to the Decedent at her Washington, New Jersey address.

Gerard also alleges that Joseph, Jr., committed forms of elder abuse against the Decedent, primarily in the form of taking or spending her money in various ways. One such disputed instance concerned the Decedent's financial investment account at UBS Financial Services, from which Gerard alleged that Joseph, Jr., was wrongfully withdrawing funds for improper purposes or wrongfully causing the Decedent to withdraw funds. Gerard's Exhibit F, a letter from his attorney to UBS Financial Services dated January 5, 2016, states that, "... Ann is approximately 90 years old, has Alzheimer's/dementia and is on medication for same, and is unable to manage her financial affairs" and that, "There exists no other valid power-of-attorney for Ann, and she no longer has the mental capacity to execute one."

In January of 2018, the Decedent entered residence at a senior center in Pennsylvania, which cared for those suffering from Alzheimer's disease and/or dementia. The Decedent died while residing at the senior center in December of 2020. Neither party is contending that Pennsylvania became the Decedent's domicile.1

Joseph, Jr., alleges that he has hired an attorney to probate the 2015 Will (which was executed and witnessed in New Jersey) and that the probate process has been initiated, though no specifics or documentary records regarding the status of same have been provided in this motion sequence.

In summary, Joseph, Jr., contends that the sale of the Decedent's New York home in 2015, her move to New Jersey (without ever residing in New York again) and conducting her life in New Jersey from 2010 to 2018 demonstrates her change of domicile from New York to New Jersey. In contrast, Gerard contends that the Decedent only "briefly" stayed with Joseph, Jr., and that she never abandoned her original New York domicile, as demonstrated by her continued payment of New York State income taxes and her use of Gerard's Greenwood Lake address as a residential address for purposes of taxes and several other financial, health and benefit matters. (See Gerard Affidavit in Opposition 10; Mahon Affirmation 27).

A. Domicile

The Surrogate's Court of any county has jurisdiction over the estate of a decedent who was a domiciliary of New York State at the time of the decedent's death. See SCPA § 205. Domicile is defined as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return." See SCPA § 103(15).

Whereas domicile is permanent and singular, residence may be temporary and plural:

Residence is necessary to establish a domicile but it is not controlling unless there is the intention of making that place one of permanent abode and adopting it as the domicile. Change of residence from one place [to] another is strong evidence of an intention to change place of domicile but standing alone is insufficient and while a person may have two places of residence, he may have only one domicile.

In re Knowlton's Will , 192 Misc. 1032, 1038 (Sur. Ct. 1948).

The Second Department has summarized the law on the change of domicile as follows:

The law is well settled that an existing domicile continues until a new one is acquired. It is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence. To meet this burden, the movant must establish the decedent's intention to effect a change of domicile from her acts, statements, and conduct (see, Matter of Pingpank, 134 AD2d 263, 265, 520 N.Y.S.2d 596 ). "The element of intent is essential" ( Laufer v. Hauge, 140 AD2d 671, 673, 528 N.Y.S.2d 878 ). The question of whether there has been a change of domicile is a mixed question of fact and law "and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals" ( Matter of Brunner, 41 NY2d 917, 918, 394 N.Y.S.2d 621, quoting Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950 ). "In order to acquire a new domicile there must be a union of *616 residence and intention" ( Matter of Newcomb , 192 NY 238, 250, 84 N.E. 950, supra ).

Matter of Urdang , 194 AD2d 615, 615–16 (2d Dept. 1993).

In determining one's domicile, "No single factor is controlling and the unique facts and circumstances of each case must be closely considered." In re Estate of King , ...

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