Editors’ Note: This article has been updated to reflect a Correction.
The estate of a woman who lived much of her life in Brooklyn, but spent her last years in a Staten Island nursing home, should be administered by Staten Island, its surrogate has ruled, resolving a dispute between the two counties’ public administrators.
Richmond County Surrogate Robert Gigante (See Profile) ruled in Matter of the Estate of Palma Bonora, File No. 2013-1173 on March 20 that the woman’s godson, acting as her legal guardian, had changed her domicile from Brooklyn to Staten Island by moving her from one nursing home to another. As a result, he said, her estate must be administered by the office of Staten Island’s public administrator, Gary Gotlin, and not Brooklyn’s public administrator, Bruce Stein.
Gigante also rejected an order to show cause issued by Brooklyn Surrogate Margarita Lopez Torres purportedly restraining him from taking further action, finding that the Brooklyn Surrogate did not have the authority to restrain him.
The decedent, Palma Bonora, lived in Brooklyn for “many years” before moving to St. Elizabeth Ann’s Health Care and Rehabilitation in 2008, according to the decision.
Between 2004 and 2008, Bonora lived in SS Joachim & Anne Residence, a Brooklyn nursing home. In 2005, her godson, Neil Mauriello, filed a petition in Brooklyn Supreme Court for appointment of a guardian for Bonora’s property under Mental Hygiene Law Article 81, which was granted. In 2006, he moved to be appointed co-guardian of Bonora’s property himself, as well as sole guardian of her person.
This motion was also granted. In November 2006, Mauriello, acting as Bonora’s guardian, had Bonora’s longtime Brooklyn home demolished; the property was eventually sold in 2011. In March 2008 Mauriello had Bonora moved from the Joachim & Anne residence to St. Elizabeth Ann’s on Staten Island. According to an affirmation he submitted to Brooklyn Supreme Court, Joachim & Anne could not provide the level of care that Bonora needed.
After her death last July, the public administrators for both Staten Island and Brooklyn filed petitions to administer the estate. Gotlin filed his petition in November, Stein filed his in December. Both Gigante and Lopez Torres issued letters of administration to their respective counties’ public administrators.
Stein filed a motion to intervene in the Staten Island case objecting to the letters of administration there, arguing that they interfered with his duties to administer the estate in Brooklyn. He also argued that there were questions of law and fact as to whether Bonora was domiciled in Brooklyn or Staten Island.
Gotlin opposed the motion, arguing there were no issues of fact and that Stein had no interest in the case, nor any authority to act outside of Brooklyn.
Both parties stipulated that Gigante should resolve the dispute because the petition was filed first in Staten Island.
Stein argued that Bonora was never domiciled in Staten Island because she lacked the mental capacity to change her domicile when she moved. Gotlin did not dispute that she lacked the mental capacity, but argued that Mauriello had the power to change her domicile as her guardian. He cited the Appellate Division, Third Department’s 1977 decision in Gibbs v. Berger, 59 AD2d 282, which held that “a conservator, who is a close and appropriate relative with natural instincts of acting in the best behalf of an incompetent, may, without court order, change the incompetent’s domicile if done in good faith and in the best interests of the conservatee.”
Stein countered that Gibbs did not involve a guardian appointed under Mental Hygiene Law Article 81. That law, he argued, allows a guardian to change an incompetent person’s abode, but not domicile.
Gigante wrote that, according to the case law, there is no clear rule about whether a guardian can change an incompetent person’s domicile. Instead, he wrote, that question turns on the specific facts of each case.
The facts in Bonora’s case, he wrote, showed that her domicile had indeed moved to Staten Island.
“The undisputed facts show that Mauriello acted in the decedent’s best interest by transferring her to a facility in Richmond County that could provide the proper extensive care that she required,” he wrote.
“The decedent’s uninterrupted residence in a facility that provided the high level of care she required established her ongoing relationship with Richmond County, with no plan or likelihood that the decedent would ever return to Kings County,” he added.
Gigante therefore ruled that the Brooklyn case must be transferred to Staten Island.
He noted that on March 10, Lopez Torres had issued an order to show cause restraining him from taking action in the case. However, he said, “the Kings County Surrogate’s Court has no authority to restrict the letters issued by this Court.”
Richard LaRosa of Passarello & LaRosa represents Gotlin.
Richard Freeman, a partner at Cullen and Dykman, represents Stein.
The attorneys could not be reached for comment.