Matter of Aragona

Matter of Aragona (2025 NY Slip Op 50858(U)) [*1] Matter of Aragona 2025 NY Slip Op 50858(U) Decided on May 28, 2025 Surrogate's Court, Erie County Mosey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on May 28, 2025 Surrogate's Court, Erie County In the Matter of Earl Thomas Aragona, Deceased. File No. 2024-1333/A PAUL J. SMALDONE, ESQ. Appearing for Petitioner, Carolyn Amelia Miller HOWARD F. FRANK, ESQ. Guardian ad Litem for Whereabouts Unknown, Earl Thomas Aragona HON. LETITIA JAMES New York State Attorney General Melissa Thore, Esq., of Counsel Acea M. Mosey, J. This is a petition pursuant to EPTL 2-1.7 seeking a determination by this Court that Earl Thomas Aragona [hereafter, Earl] is dead, and that he died on February 4, 2024. This petition was filed by Earl's daughter, Carolyn, in November, 2024, and is predicated on her contention that her father died as a result of his "expos[ure] to a specific peril of death and that he died on February 4, 2024 as a result of a suicide." A publication citation was issued to Earl, and a guardian ad litem [hereafter, the GAL] was appointed to represent Earl's interests. David Aragona, Earl's son, has joined in the relief sought by Carolyn, and affidavits have been filed by eight [8] disinterested individuals who knew Earl. All support the position that Earl has not been seen or heard from since February 4, 2024 and that, at that time (as some have attested), Earl was "stressed out", "a mental wreck", "sounded suicidal . . . a couple of days before February 4, 2024", and, according to his son David, "felt hopeless". (A) The record before me reveals that Earl, age 72 in 2024, and his wife, Lisa, who had been married for over 51 years, had two children, Carolyn and David. Lisa had a "neuromuscular weakness" disorder which "was very debilitating" and had existed for some time, and Earl "was her primary caretaker". Earl himself "had a history of major depressive disorder, general anxiety disorder and post-traumatic stress disorder, and bipolar disorder which he had been dealing with his entire life", and he had grown up "in an abusive household and his father [had] committed suicide." As Lisa's "health and condition deteriorated" in 2023-2024,[FN1] Carolyn says that Earl "felt hopeless" and he was "becoming anxious about everything"; and, in the Fall of 2023, "he became obsessive about getting his Will together". Carolyn states that her father Earl "often expressed his fascination for Niagara Falls and often visited the Falls . . . On Sunday, February 4, 2024, we noted that our father was absent from home and we were concerned. We were able to trace his cell phone to the Niagara Falls State Park and we feared that he might harm himself. We notified that New York State Police, we located his car in a Falls parking lot and the Park Police and the State Police began a search of the area. A police tracking dog was involved and traced a scent from the car to the water's edge. At the water's edge, a bag was located containing personal effects belonging to my dad."[FN2] David echoes his sister's recitation of the facts, and adds this to the picture about Earl: "My father, Earl Thomas Aragona, was suffering from severe anxiety and depression for a long period of time. My father was the primary caretaker for my mother who was suffering from an acute respiratory illness with the consequence of complications of neuromuscular weakness. Her illness was very debilitating, and my father was doing everything he possibly could to care for my mother and attend to her every need. However, my father felt that all if his efforts to help my mother were not improving her lifestyle; he felt hopeless, and his depression increased. He stopped taking his medication that was prescribed for him." Everything recounted by Carolyn and David about their father Earl's circumstances in 2023 and early 2024 are corroborated by various of Earl's friends. For example, Michael Shelly, who had known Earl for "about 22 years", attested as follows: "Toward to end of 2023, affiant learned from Earl Aragona that his wife, Lisa Jane Aragona, was not well and suffering from another intractable illness. He was her primary caregiver and he appeared depressed, and most concerned about her health. He had lost hope and was frustrated that he was not doing enough for her. The caregiving was exhausting and wearing him down. He felt helpless. He said he was not sleeping well and had insomnia. He did not seem his regular self."[FN3] (B) The GAL, in a thorough and well-documented report, recommends that this Court find that Earl died on February 4, 2024, having been exposed to a specific peril of death (the river and [*2]waters immediately along and adjacent to the Niagara Falls). I concur. Under EPTL 2-1.7, a Court may find that a person is dead who has been absent for three years, for whom a diligent search has been conducted and who has not been seen or heard from in that period. The period may be shortened if the person missing was exposed to a "specific peril of death". Clear and convincing evidence is required for a Court to make the necessary findings. Here, the evidence is overwhelming that Earl was distraught and overwhelmed by his life circumstances on, and for some time before, February 4, 2024. He seemed "suicidal" to long-time close friends. His vehicle was left in a parking area around the Niagara Falls on the morning of February 4, 2024, and he was traced by police canine patrol from the car to the edge of the waters near and just above and adjacent to the Falls. Significantly, too, his wallet, car keys and other personal items were found in a bag at the water's edge. I find that Earl died on February 4, 2024, having been exposed to the specific peril of death at the edge of the waters above and adjacent to the Niagara Falls. See, e.g., Matter of Downes, 136 Misc 2d 1031 [1987] and Matter of Shell, 2004 NYLJ Lexis 5458 [pub. June 15, 2004]. Finally, the GAL fee of $1,960.00 has been approved by me, and shall be paid within twenty (20) days of the date of this decision. This decision shall constitute the Order and Decree of this Court, and no other or further order or decree shall be required. DATED: May 28, 2025 BUFFALO, NEW YORK HON. ACEA M. MOSEY Surrogate Judge Footnotes Footnote 1:Lisa died on May 14, 2024. Footnote 2:A police report of the tracking of Earl's scent from his car to the water's edge indicates that the personal effects bag, which the canine officer found there, contained Earl's wallet, a cell phone, a set of keys, "and a large kitchen knife." Footnote 3:Shelly's statements are echoed by others in the record, particularly the affidavit from Earl's friend of over 50 years, David Carlisle, who states, inter alia, that he talked to Earl by cell phone two days before February 4, 2024, and that "I was concerned that he sounded suicidal."