In this proceeding the alleged absentee's wife, who received letters of temporary administration, seeks a declaration pursuant to EPTL 2-1.7 that the respondent absentee died on May 9, 2004. A hearing was held before the court at which the guardian at litem appointed for the respondent absentee participated. The parties who testified at the hearing were the absentee's mother-in-law, his eldest sister, his stepson, his wife and a good friend.

The testimony of all witnesses was similar with respect to most matters. All witnesses testified that the respondent had a very good relationship with his wife, whom he had known since 1996 and married in 1998. He also had a good relationship with his stepson, who he treated as his own son, with his own son who was born in 1999, as well as with his mother-in-law and the sister who testified. In addition, all witnesses testified that the respondent had no substance abuse or gambling problems.

The respondent disappeared on Mothers' Day, May 9, 2004. On that date, he ordered food from a deli to be delivered to the home of his mother-in-law where the family was to gather for a 2:00 p.m. luncheon to celebrate Mother's Day. That morning, the respondent had coffee with his wife, then got into his car and left the house to run several errands, including buying materials from Home Depot for needed repairs at his house and to order additional food and other items for the Mother's Day gathering. The respondent left his home taking only the usual items one might take to run errands. He called his wife several times during that morning, the last time being at about noon when he told her that he would be home shortly and that he was hungry. The food arrived at the home of his mother-in-law but he did not.

When the respondent did not return home by late afternoon, the wife contacted friends and family all of whom stated they had not heard from the respondent since that morning. With the assistance of friends, including one who was a former detective, calls were made to hospitals in the vicinity to see if the respondent had been injured and was admitted to a hospital. Several friends went to Home Depot in the hope of finding the respondent or evidence that he had been there. The following day, the wife went to the police station and filed a missing person's police [*2]report. The police undertook an investigation, but never were able to find any significant leads as to what became of him. Several weeks later, the police did locate the respondent's car approximately five miles from his home. The police performed forensic exams on the fingerprints found in the car, all of which were matched to family members, other friends and, in one case, to a person who parked the car at an affair the respondent attended the day before his disappearance. On another occasion, the police requested that the wife come to the precinct to identify a watch and a wallet they had located, however, the wife informed the police and testified that those items did not belong to the respondent.

The respondent had a steady job and apparently came home every day and ate dinner with his family. At least once a week, his immediate family ate with other family members and almost every Sunday, he ate at his eldest sister's home. He also ate with his mother-in-law on a regular basis. The friend testified that he went to the respondent's home and had dinner with the respondent's immediate family several times a week. The respondent's stepson testified that the respondent coached his soccer team when the stepson was a youngster, and regularly attended all of his stepson's other sporting events. The day before he disappeared, the respondent attended a party with his wife, mother-in-law and the friend who testified. All of those witnesses agreed that the respondent appeared to be in good spirits right up until the time that he disappeared, and he never indicated to any of them that he was concerned about anything untoward happening. To the contrary, they stated that he always liked to be the life of the party and that was how he acted the last time each of them saw him at a gathering.

The respondent had credit cards and a joint checking and savings account with his wife. After his disappearance, there was no activity with regard to any credit cards, and no checks or withdrawals were drawn on or made from any accounts thereafter other than those the wife made. Although submissions attached to the petition indicate that some newspaper reporters believed that the respondent might have had dangerous enemies, there was not one iota of proof adduced at the hearing that demonstrated the respondent was exposed to any specific peril (see EPTL 2-1.7 [b]). Instead, the uncontroverted proof established, by a preponderance of the credible evidence, that the respondent has been absent for a continuous period since the afternoon of May 9, 2004, and after a diligent search, he has not been seen or heard from and his absence is not satisfactorily explained. Consequently, it is presumed that the respondent died three years after the date of his unexplained absence, as there is no other satisfactory explanation for his continuous absence.

Accordingly, pursuant to EPTL 2-1.7 (a) the respondent is declared dead as of May 9, 2007, which is three years after the date of his unexplained absence on May 9, 2004. Although the court declines to "so order" the stipulation between the petitioner and State Farm Life and Accident Assurance Company which was filed with the court, it appears that the decree to be entered hereon declaring the respondent dead as of May 9, 2007 is consistent with the terms of the stipulation. Upon entry of the decree herein, if any party so desires, a permanent fiduciary may be appointed for the respondent's estate upon the filing of the requisite documents. The guardian ad item shall file an affirmation of services and his compensation shall be fixed in the decree to be entered hereon.

Settle decree.

SURROGATE [*3]

Dated: May 23, 2011