The decedent's son, Alfred, moves pursuant to SCPA 501 to transfer all proceedings in this estate to the Orange County Surrogate's Court on the ground that the decedent was a domiciliary of Orange County on May 4, 2007, the date of her death. The decedent's only other distributee, her son Cerbellon, opposes the application.

On the return date of process in Cerbellon's application for letters of administration, the parties disagreed with respect to whether the decedent died a domiciliary of Bronx or Orange County and with respect to whether the decedent had any assets on the date of her death or previously transferred all of her assets to Alfred. However, they did enter into a stipulation which provided, inter alia, that letters of administration could issue to Cerbellon limited to commencing an SCPA 2103 proceeding, but no trial would be held on the merits prior to a determination of the proper venue for the proceeding (see Matter of Marrero, NYLJ, Nov. 23, 2007, at 37, col 4). The parties waived a hearing on the domicile issue. Alfred submitted his own affidavit and the affirmation of his counsel in support of the venue motion. Cerbellon submitted his own affidavit, the affirmation of his counsel and affidavits from the decedent's sister and niece in opposition to the motion.

The decedent purchased a house in the Bronx in 1985, where she resided until she suffered a stroke in August, 2005. From the date that the decedent was discharged from a medical facility in September, 2005, until her death, she resided with Alfred and his wife in their home in Newburgh, New York. Alfred asserts that the decedent was domiciled in Newburgh, New York on the date of her death based upon the following: (1) the decedent resided there exclusively from September, 2005 until her death in May, 2007; (2) the decedent obtained an "interim license" from the Department of Motor Vehicles for the period from January 4, 2006 through April 4, 2006 listing the home in Newburgh as her address; and (3) the decedent was receiving her medical care from a provider located in Orange County. The three affidavits in opposition counter Albert's contentions with the following: (1) the decedent failed to sign the interim license and had no need for a driver's license during that period; (2) notwithstanding that the decedent's Bronx home was sold approximately two months prior to her death, the affiants contend that the deed does not appear to contain the decedent's signature, that Alfred made it difficult for other family members to communicate with the decedent at the time of the sale and that inasmuch as Alfred received all of the proceeds, the sale was solely for Alfred's benefit; (3) Alfred did not tell other family members that the decedent had died; and (4) on numerous occasions, including up until the last time that the affiants were able to communicate with the decedent, she stated that she intended to return to the [*2]Bronx as soon as her health permitted.

SCPA 103(15) defines domicile as "a fixed, permanent and principal home to which a person wherever temporarily located always intends to return" (see Matter of Newcomb, 192 NY 238 [1908]; Matter of Bodfish v Gellman, 50 AD2d 457 [1976]). The burden is upon the party seeking to prove a change of domicile to establish such a change by clear and convincing evidence (see Matter of Urdang, 194 AD2d 615 [1993]). Mere change of residence, although continued for a long time, does not effect a change of domicile (Matter of Newcomb, 192 NY at 244). The fact that the decedent lists an address on a New York State driver's license is not dispositive (see Matter of Schwarzenberger, 215 AD2d 393 [1995]).

It is not surprising that Alfred, who resides in Orange County, would find it more convenient to try all estate proceedings in that county. However, his own affidavit, the only proof that he offered, when considered in conjunction with the affidavits in opposition, does not clearly and convincingly establish that the decedent ever intended to change her domicile from Bronx County to Orange County. Neither the fact that an interim license had been obtained for the decedent which listed Newburgh as her address, which was never signed by the decedent and had expired more than a year prior to her death, nor the sale of the decedent's Bronx home shortly prior to her death are sufficient to sustain the movant's burden where the papers in opposition allege the sale was a product of Alfred's wishes rather than the decedent's and question whether the deed contains the decedent's signature. Of even greater significance, the movant's self-serving affidavit is insufficient to overcome the sworn statements from two affiants, who have no financial interest in the litigation, that the decedent had continuously stated that she intended to return to the Bronx as soon as her health permitted. The fact that the decedent's health problems made it unlikely that she would ever actually return to the Bronx, where she had resided for decades, does not change her view of Bronx County as her permanent home to which she always intended to return.

Accordingly, this decision constitutes the order of the court denying the motion to change the venue of estate proceedings from this court to the Orange County Surrogate's Court.

Proceed accordingly.



April 29, 2008SURROGATE