In re Rogers, File Nos. 2020-500 and 2020-500/B

CourtNew York Surrogate Court
Writing for the CourtTimothy P. McElduff Jr., S.
Citation73 Misc.3d 1221 (A),155 N.Y.S.3d 305 (Table)
Decision Date09 November 2021
Docket NumberFile Nos. 2020-500 and 2020-500/B
Parties MATTER OF Petition of Burl L. ROGERS FOR Administration of the ESTATE OF Marietta BELL, Deceased. Matter of Petition of Bijan Richards for Administration of the Estate of Marietta Bell, Deceased.

73 Misc.3d 1221 (A)
155 N.Y.S.3d 305 (Table)

MATTER OF Petition of Burl L. ROGERS FOR Administration of the ESTATE OF Marietta BELL, Deceased.

Matter of Petition of Bijan Richards for Administration of the Estate of Marietta Bell, Deceased.

File Nos. 2020-500 and 2020-500/B

Surrogate's Court, New York, Orange County.

Decided on November 9, 2021

Andrew Maloney, Esq., Maloney Law Group PLLC, Attorneys for Petitioner Burl L. Rogers, One Rockefeller Plaza, Suite 1100, New York, New York 10020

Gregory T. Ambus, Esq., Gregory T. Ambus, P.C., Attorneys for Cross Petitioner/Objectant Bijan Richards, 380 North Broadway STE 300, Jericho, New York 11753

Timothy P. McElduff Jr., S.


The Decedent, Marietta Bell, died without a will. Petitioner Burl L. Rogers commenced an administration proceeding and sought the issuance of Letters of Administration to himself, alleging that he had standing and an interest to do so as the common law spouse of the Decedent. Cross-Petitioner Bijan Richards answered the petition of Burl L. Rogers and, therein, disputed Mr. Rogers’ status as a common law spouse and asserted his own superior standing and interest as the Decedent's only child and sole statutory distributee under EPTL § 4-1.1. Accordingly, Bijan Richards filed a cross-petition seeking the issuance of Letters of Administration to himself as the sole statutory distributee pursuant to SCPA § 1001.

The singular issue to be determined at trial is whether or not Petitioner Burl L. Rogers qualifies as the common law spouse of the Decedent. If he does, he is entitled to the first $50,000.00 plus half of the Decedent's Estate under the law of intestacy, as well as statutory priority in being appointed Administrator of the Estate. If he does not, then he holds no share in the Decedent's Estate and Bijan Richards, as the Decedent's only child and distributee would have statutory priority in being appointed Administrator of the Estate.

The trial was conducted over a three-day period (May 6, 2021, May 28, 2021 and June 17, 2021), during the course of which sworn testimony was taken from multiple witnesses and seven documentary exhibits were admitted into evidence. At the conclusion of the trial, the parties were directed to submit post-trial memoranda, which they have done as of October 4, 2021.

As a threshold matter, the Court takes judicial notice of all prior filings, documents, Decisions and Orders under this file number. As a further threshold matter, the Court, in rendering this decision, has also considered, and relied upon all sworn testimony elicited at trial together with the documentary evidence admitted into evidence. Thus, in rendering its Decision, the Court has considered the sworn testimony of Burl Rogers, Bijan Richards, Annice Johnson, Deborah Smith, Bernard Thombs, Derrick Green, Yolanda Mutchinson, Dorothy White, Drucilla Zimbi, and Lisa Chambers.

The Court has likewise considered counsels’ respective post-trial memoranda.

Discussion, Findings and Legal Analysis

Petitioner Burl Rogers and Decedent Marietta Bell had known each other since the mid-1970s. The Decedent was the girlfriend of Petitioner's close friend. Through the years, the Petitioner and Decedent remained acquainted and helped each other at various points in their lives in significant ways. Petitioner was twice married and twice divorced. The Decedent helped to take care of Petitioner's children at different points. The Decedent was never married.

Eventually, the Petitioner and Decedent entered a committed relationship. They travelled together, extensively. They also purchased a house together as tenants in common and lived there together for approximately ten years before Decedent's death on December 17, 2019.

The first version of the Decedent's Death Certificate noted that the Decedent was married to the Petitioner. The Death Certificate was later amended by correction on January 10, 2020 to cross-out the previously checked box for marital status as "married" and to check the box for "never married." (Ex. 2). Further, the Decedent's obituary referred to Petitioner as her "beloved mate" and excluded any reference to a husband or to being married at any point in time. (Ex. 3).

At the time of her death, the Decedent was living with the Petitioner in a home that they had purchased together in 2009 as tenants in common. (Ex. 5). The Petitioner has argued that the attorney who handled their purchase and closing had mistakenly recorded their interest as tenants in common instead of joint tenants with a right of survivorship or tenants by the entirety (due to the alleged status as having been married under common law by that time). However, the only evidence before the Court on that issue was Petitioner's conclusory statement. Petitioner has never commenced an action for reformation of the deed due to mistake, etc. Furthermore, no other documentary evidence exists to suggest that Petitioner and Decedent "should have" owned the house jointly. For example, Decedent did not hold herself out as married on any of her employment records, retirement records, insurance records, banking records/accounts or tax filings, nor did she hold any other assets or property jointly with the Petitioner.

The Petitioner testified that he had traveled with the Decedent to Washington, D.C., in or around May 2008, where Petitioner and Decedent had held themselves out to be man and wife and had cohabitated by checking into a hotel in Washington, D.C. However, Petitioner could not specifically recall their trips to Washington, D.C., where they stayed in Washington, D.C. or for how long they stayed. (Trial Transcript, 5/6/21, pp. 50-55)....

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