Matter of Gonzalez

CourtNew York Surrogate Court
Citation196 Misc.2d 984,768 N.Y.S.2d 276
Decision Date26 August 2003
PartiesIn the Matter of the Estate of JENNIE N. GONZALEZ, Deceased.

196 Misc.2d 984
768 N.Y.S.2d 276

In the Matter of the Estate of JENNIE N. GONZALEZ, Deceased.

August 26, 2003.


Slavet & Altman (Helen Altman of counsel), for Dawn Gonzalez and another, petitioners.

Thomas Gonzalez, cross petitioner pro se.

OPINION OF THE COURT

LEE L. HOLZMAN, J.

The decedent's sister and brother (the petitioners) move for summary judgment granting their petition for the issuance of letters of administration to their designee and dismissing the cross petition of the decedent's father for the issuance of letters of administration to himself and his designee. The petitioners contend that the decedent's father, her sole presumptive

[196 Misc.2d 985]

distributee, is disqualified from taking a distributive share in her estate under EPTL 4-1.4 (a) on the alternative grounds that he failed or refused to provide for her or that he abandoned her and, consequently, her estate should be distributed to them under EPTL 4-1.1 as though her father had predeceased her (EPTL 4-1.4 [b]).

The decedent died tragically on September 11, 2001 in the World Trade Center attacks, a week short of her 28th birthday. After the depositions of the parties had been taken and the instant motion had been served, the court granted the application of the father's attorney to be relieved as counsel based upon a sworn letter from the father discharging her (Matter of Gonzalez, NYLJ, May 12, 2003, at 22, col 1). Although afforded time and an extension of 25 days to oppose this motion, the now pro se father submitted no admissible evidence in opposition. Instead, he faxed to the court inadmissible unsworn ex parte statements proclaiming his love for the decedent and copies of photographs which are apparently supposed to show the father, the decedent and various family members together. In any event, the petitioners do not deny that they and the decedent had occasional visits with their father. Accordingly, the court must determine whether, in the absence of opposition, the petitioners have sustained the burden of proof borne by a party alleging an abandonment or failure to support (see Matter of Clark, 119 AD2d 947 [1986]).

The petitioners contend that summary judgment should be granted on the basis of the sworn deposition testimony of the father as well as their own sworn statements. The decedent's parents were never married and it appears that they were unable to maintain a home for their three children, the decedent and the petitioners. The decedent's mother died in February 2001. Although the father's version of the facts varies from that of the petitioners in some details, his testimony confirms that he relocated to Florida with his mother when the decedent was approximately seven years old, leaving both of his daughters in the care of their maternal grandmother and great grandmother, and his son with foster parents, and that he provided virtually nothing for any of the children by way of support while they were minors. He claims that he left the children with others because he knew they would be better off with them and that he provided no support for the decedent and her sister because he was not asked to do so and because he believed that both of them received public assistance. The father testified that the people who raised the children would

[196 Misc.2d 986]

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6 practice notes
  • Cruz v. Hawley (In re Estate of Martirano), 527734
    • United States
    • New York Supreme Court Appellate Division
    • May 9, 2019
    ...of Ball , 24 A.D.3d at 1064–1065, 807 N.Y.S.2d 163 ; Matter of Pessoni , 11 Misc.3d at 246–247, 810 N.Y.S.2d 296 ; Matter of Gonzalez , 196 Misc.2d 984, 988, 768 N.Y.S.2d 276 [Sur. Ct. 2003] ). From the time that decedent was found abandoned in 1966 until 1981, it is undisputed that deceden......
  • In the Matter of Estate of Ball, 97667.
    • United States
    • New York Supreme Court Appellate Division
    • December 22, 2005
    ...(Matter of Emiro, 5 Misc 3d 1002[A], 2004 NY Slip Op 51149[U], *6; see Matter of Brennan, supra at 1000-1001; Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). On the issue of abandonment, however, the standard is less certain. A parent may be disqualified under EPTL 4-1.4 (a) if that paren......
  • In the Matter of Wright, No. 2007-793/A
    • United States
    • New York Surrogate Court
    • June 17, 2008
    ...premised on either of two criteria: (i) failure or refusal to support the child; or (ii) abandonment of the child (Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). Since these criteria are separate and distinct, proof of either will cause the parent to be disqualified (Matter of Baecher, 1......
  • In The Matter Of The Estate Of Cedric E. Chatham, 253-A/07
    • United States
    • New York Surrogate Court
    • July 26, 2010
    ...of Wigfall, 20 Misc 3d 648, 651 [2008]; Matter of Emiro, 5 Misc 3d 1002 [A], 2004 NY Slip Op 51149 [U] [2004]; Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). As the statutory criteria of EPTL 4-1.4 is set forth in the disjunctive, proof of either will result in disqualification of the pa......
  • Request a trial to view additional results
6 cases
  • Cruz v. Hawley (In re Estate of Martirano), 527734
    • United States
    • New York Supreme Court Appellate Division
    • May 9, 2019
    ...of Ball , 24 A.D.3d at 1064–1065, 807 N.Y.S.2d 163 ; Matter of Pessoni , 11 Misc.3d at 246–247, 810 N.Y.S.2d 296 ; Matter of Gonzalez , 196 Misc.2d 984, 988, 768 N.Y.S.2d 276 [Sur. Ct. 2003] ). From the time that decedent was found abandoned in 1966 until 1981, it is undisputed that deceden......
  • In the Matter of Estate of Ball, 97667.
    • United States
    • New York Supreme Court Appellate Division
    • December 22, 2005
    ...(Matter of Emiro, 5 Misc 3d 1002[A], 2004 NY Slip Op 51149[U], *6; see Matter of Brennan, supra at 1000-1001; Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). On the issue of abandonment, however, the standard is less certain. A parent may be disqualified under EPTL 4-1.4 (a) if that paren......
  • In the Matter of Wright, No. 2007-793/A
    • United States
    • New York Surrogate Court
    • June 17, 2008
    ...premised on either of two criteria: (i) failure or refusal to support the child; or (ii) abandonment of the child (Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). Since these criteria are separate and distinct, proof of either will cause the parent to be disqualified (Matter of Baecher, 1......
  • In The Matter Of The Estate Of Cedric E. Chatham, 253-A/07
    • United States
    • New York Surrogate Court
    • July 26, 2010
    ...of Wigfall, 20 Misc 3d 648, 651 [2008]; Matter of Emiro, 5 Misc 3d 1002 [A], 2004 NY Slip Op 51149 [U] [2004]; Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). As the statutory criteria of EPTL 4-1.4 is set forth in the disjunctive, proof of either will result in disqualification of the pa......
  • Request a trial to view additional results

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