                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523651
________________________________

In the Matter of the Estate of
   BERNARD J. KING, Deceased.

WARREN COUNTY,
                    Appellant;              MEMORANDUM AND ORDER

DONALD J. KING, as Executor of
   the Estate of BERNARD J.
   KING, Deceased,
                    Respondent.
________________________________


Calendar Date:   January 12, 2017

Before:   Peters, P.J., Egan Jr., Rose, Devine and Aarons, JJ.

                             __________


      The Clements Firm, Glens Falls (Thomas G. Clements of
counsel), for appellant.

      McNamee, Lochner, Titus & Williams, PC, Albany (Richard D.
Cirincione of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from an order of the Surrogate's Court of Saratoga
County (Kupferman, S.), entered January 5, 2016, which, among
other things, dismissed petitioner's application, in a proceeding
pursuant to SCPA 711, to revoke letters testamentary issued to
respondent.
                              -2-                523651

      Bernard J. King (hereinafter decedent) resided at a nursing
facility operated by petitioner from July 2010 until his death in
October 2011. Based upon the care and services rendered to
decedent, petitioner alleged that decedent owed it $111,929 as of
the date of decedent's death. In June 2015, petitioner, as a
creditor of decedent's estate, commenced a probate proceeding in
Warren County to administer decedent's estate. Unbeknownst to
petitioner, a probate proceeding to administer decedent's estate
had already been commenced in Saratoga County and respondent, in
September 2012, had been issued letters testamentary in
accordance with decedent's last will and testament. In August
2015, petitioner filed a petition in Surrogate's Court, Saratoga
County to revoke the letters testamentary issued to respondent on
the basis that they were issued under a false suggestion of a
material fact – namely, that respondent incorrectly represented
that decedent was domiciled in Saratoga County, when, according
to petitioner, decedent was domiciled in Warren County at the
time of his death. Petitioner also requested that the probate
proceeding be transferred from Saratoga County to Warren County.1
Surrogate's Court denied petitioner's request to change venue and
summarily dismissed the petition. Petitioner now appeals.

      As an initial matter, contrary to respondent's contention,
the petition is not barred by laches. While petitioner waited
almost three years after decedent's death to take any action, the
record reveals that any delay by petitioner was not willful.
After decedent's death, petitioner was advised by one of
decedent's sons that he was aware of the amount due to petitioner
and was working on satisfying the outstanding bill. Only after
hearing nothing from decedent's son did petitioner subsequently
commence the Warren County probate proceeding and file the
instant petition to revoke respondent's letters testamentary.
Under these circumstances and taking into account that SCPA 711
imposes no time limit by when a petition to revoke letters
testamentary must be filed, we conclude that laches does not bar
the instant petition (see generally Herrick v Watters, 50 AD2d


    1
        While the petition did not explicitly seek a change in
venue, petitioner requested such relief in its supporting papers
and Surrogate's Court entertained this issue.
                              -3-                523651

627, 627 [1975]).

      Turning to the merits, we reject petitioner's assertion
that the incorrect specification of the county where decedent was
domiciled at the time of his death amounted to a false suggestion
of a material fact so as to warrant revocation of the letters
testamentary issued to respondent (see SCPA 711 [4]). The
surrogate's court of any county has jurisdiction over the estate
of a decedent who was domiciled in New York at the time of death
(see SCPA 205 [1]). As such, notwithstanding any error in the
specification of the decedent's county of domicile at the time of
the decedent's death, Surrogate's Court had jurisdiction to issue
letters testamentary to respondent (see Matter of Obregon, 91
NY2d 591, 597 [1998]). Given that the decision whether to remove
an executor lies within the discretion of Surrogate's Court (see
SCPA 713; Matter of Collins, 36 AD3d 1191, 1193 [2007]; Matter of
Pati, 151 AD2d 1006, 1007 [1989]) and that a decedent's choice of
an executor for his or her estate is accorded great deference and
will not be lightly disregarded (see Matter of Palma, 40 AD3d
1157, 1158 [2007]), we find no error in Surrogate Court's
determination not to revoke the letters testamentary issued to
respondent.

      We are, however, persuaded by petitioner's argument that
Surrogate's Court erred in failing to change venue of the
proceedings from Saratoga County to Warren County. The proper
venue for proceedings relating to the estate of a decedent is
"the county of the decedent's domicile at the time of his death"
(SCPA 205 [1]). Domicile is defined as "[a] fixed, permanent and
principal home to which a person wherever temporarily located
always intends to return" (SCPA 103 [15]). The determination of
an individual's domicile "is generally a mixed question of fact
and law" (Matter of Brunner, 41 NY2d 917, 918 [1977]) and is
based upon "conduct manifesting an intent to establish a
permanent home with permanent associations in a given location"
(Matter of Clute v Chu, 106 AD2d 841, 843 [1984]). "No single
factor is controlling and the unique facts and circumstances of
each case must be closely considered" (Matter of Gadway, 123 AD2d
83, 85 [1987] [citations omitted]).
                                 -4-                523651

      The record evidence reveals that, prior to his death,
decedent was domiciled in Warren County and decedent did not
intend on abandoning such domiciliary. When decedent moved out
of New York in the 1990s, his surrendered driver's license
indicated that he had resided in Warren County. Notwithstanding
this relocation, in November 1997, decedent executed a power of
attorney stating that he resided at an address in Warren County.
Decedent also continued to own various properties located within
Warren County. Decedent's last will and testament executed in
August 2003 specifically stated that he resided and was
"domiciled in the County of Warren, State of New York." In
August 2006, decedent executed another power of attorney stating
that he resided at an address in Warren County. And, in 2011,
when decedent applied for admission to petitioner's nursing
facility, he provided a Warren County address.

      Against this evidence, respondent relies on the fact that
decedent, upon his return to New York,2 resided with one of his
sons in Saratoga County and that decedent's death certificate
listed a Saratoga County address as decedent's residence. While
such evidence militates in favor of finding that decedent was
domiciled in Saratoga County, because the record evidence as a
whole demonstrates that decedent never intended to abandon his
Warren County domiciliary (see Matter of Meyer, 62 AD3d 133,
134-135 [2009]; Matter of Chrisman, 43 AD2d 771, 771-772 [1973];
Matter of Ferris, 286 App Div 631, 633 [1955], appeal dismissed 1
NY2d 860 [1956]), the proper venue for his probate proceeding is
Warren County (see SCPA 205 [1]). Accordingly, venue should have
been transferred from Saratoga County to Warren County (see SCPA
205 [2]).

         Peters, P.J., Egan Jr., Rose and Devine, JJ., concur.




     2
        The record is not clear as to precisely when decedent
returned to New York.
                              -5-                  523651

      ORDERED that the order is modified, on the law, without
costs, by changing venue from Saratoga County to Warren County,
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
