In re Judicial Declaration of Death of Philip

Malone, J. (dissenting).

Under the clear and convincing evidence standard required under EPTL 2-1.7 (a), petitioner, as the bearer of the burden of proof, must establish that “it is highly probable that what he . . . has claimed is actually what happened” (Matter of Cella [Appeal No. 1], 261 AD2d 870 [1999], lv denied 93 NY2d 814 [1999]). In my view, the evidence does not support petitioner’s claim that his wife fell victim to the terrorist attacks on the World Trade Center on September 11, 2001. Accordingly, I would affirm the decree declaring Sneha Anne Philip dead as of September 10, 2004,…