The family of Sneha Anne Philip, a 31-year-old physician who was last seen shopping across the street from the World Trade Center on the evening of Sept. 10, 2001, has won its lengthy quest to have Dr. Philip officially recognized as a victim of the following morning’s terrorist attack.

A split Appellate Division, First Department, panel overturned a 2006 Manhattan Surrogate Court ruling that Dr. Philip officially died on Sept. 10, 2004, exactly three years to the day after she disappeared.

The panel ruled that, contrary to Surrogate Renee R. Roth’s ( See Profile) finding, the evidence presented by Dr. Philip’s husband and mother satisfied the “clear and convincing” standard that Dr. Philip died underneath the fallen twin towers.

“Even without direct proof irrefutably establishing that her route [on the morning of Sept. 11] took her past the World Trade Center at the time of the attack, the evidence shows it to be highly probable that she died that morning, and at that site, whereas only the rankest speculation leads to any other conclusion,” Justice David B. Saxe ( See Profile) wrote for the 4-1 majority in Proceeding for Judicial Declaration of Death of Sneha Anne Philip, 2221.

The decision will be published Tuesday.

The panel reversed the surrogate and granted Dr. Philip’s family’s petition for a declaration that she had died on Sept. 11, 2001, at the World Trade Center.

For more than five years, the family sought to legally establish that Dr. Philip, who lived with her husband a few blocks from the World Trade Center but failed to come home on the evening before the planes hit the towers, died in the Sept. 11 attack. Dr. Philip was last seen – on videotape retrieved from security cameras – browsing through a rack of coats at Century 21, the discount department store across the street from the towers, in the late afternoon of Sept. 10.

Lacking DNA ties to the towers or any other direct evidence of her death, the family relied primarily on various family members’ testimony.

Dr. Philip’s husband, for example, testified that his wife, a graduate of Chicago Medical School who had worked at Staten Island’s St. Vincent’s Medical Center prior to her disappearance, often spent the night out, but would usually return home between 7 a.m. and 9 a.m. the next morning.

Because of their Battery Park location, her route would necessarily take her past the site of the attack and as a doctor, she would likely rush in to help, he opined.

Her mother said that Dr. Philip had recently discussed visiting Windows on the World, the restaurant on the 107th floor of the North Tower, to scout out a friend’s upcoming wedding.

Surrogate Roth’s November 2005 decision, however, turned on a guardian ad litem’s report, which suggested that Dr. Philip’s lifestyle may have played a role in her death. Specifically, guardian Ellen Winner’s report, which relied primarily on police and a private investigator’s reports, said that Dr. Philip may have had “drug and/or alcohol problems” and “often stayed out all night with individuals (not known to her husband) whom she met at various bars.”

‘Undue Credence’

Surrogate Roth found that Dr. Philip’s family failed to satisfy the “clear and convincing” evidence standard set forth by EPTL 2-1.7, and denied her family’s petition seeking a declaration that Dr. Philip died in the terror attack.

In a 14-page decision handed down yesterday, the First Department reversed, finding that the surrogate relied on hearsay evidence and evidence that had not been properly admitted, and that she gave “undue credence” to the guardian’s suggestion that Dr. Philip’s way of life may have played a role in her manner of death.

“[A]lthough it is possible that the decedent met ‘some other unfortunate fate,’ the evidence clearly made it highly probable that she died in the World Trade Center attack, while it failed to point to any other inference,” Justice Saxe wrote.

Justices Angela M. Mazzarelli ( See Profile), George D. Marlow ( See Profile) and James M. Catterson ( See Profile) joined the majority.

Justice Bernard J. Malone ( See Profile) dissented.

“Petitioner’s sole argument on appeal is based on his testimony that his wife was away from their Battery Park City home the night of September 10, 2001 on one of her frequent unannounced overnight absences, and that she always returned home from wherever she went between 7:00 and 9:00 a.m. the next morning,” Justice Malone wrote. “Since it is not known where the decedent spent the night of September 10, it requires speculation to say, as petitioner does, that her route home . . . took her across or dangerously near the World Trade Center grounds.”

Solo-practitioner Marc Bogatin represented Dr. Philip’s family. Mr. Bogatin said that the family’s quest had nothing to do with money, as the federal September 11 Victim Compensation Fund’s deadline has passed and Dr. Philip’s insurance has been collected, but rather about closure and adding Dr. Philip’s name to the list of 9/11 victims.

“The family has long believed that Ms. Philip died at the World Trade Center and they were very upset when the lower court ruled in substance that her death was unexplained. It’s fair to say that the family was devastated when her name was removed from the official list of victims,” Mr. Bogatin said.

Ellen Winner, the guardian ad litem for Dr. Philip, could not be reached for comment.

- Mark Fass can be reached at mfass@alm.com.