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Plaintiff Brings an Action for Leave to Compromise an Action

In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. The decedent died as a result of injuries he sustained in a construction accident on June 7, 2000 in Bronx, New York. On October 13, 2000 this court issued limited letters to petitioner, Mr. JC, decedent’s uncle, to commence this action. The action was commenced on August 27, 2001. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43 in an order dated March 20, 2006. This proceeding was commenced on December 5, 2006 to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance of the estate among the distributees who suffered a pecuniary loss.

On December 22, 2006, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow Mrs. GM. Petitioner also served Mrs. GM with the citation on that date as the mother of decedent’s infant daughters, PG and CG. Another citation was served that date on the infant, PG since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. Citation was returnable January 10, 2007. No one appeared on that date. By order of this court dated February 1, 2007 a guardian ad litem was appointed for PG and CG. The guardian ad litem filed his report dated March 12, 2007.

In the guardian ad litem’s report he points out that PG turned eighteen on February 8, 2007 after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over PG presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for PG’s signature and files it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by PG.

The court disagrees with the guardian ad litem’s contention that the court lacks jurisdiction over PG. She was properly served at a time when she was an infant and thus, except for her reaching majority, she would be bound by a determination made in the proceeding.

However, the representation of an infant by a guardian ad litem terminates upon the infant’s attainment of her majority. As Surrogate pointed out, by statute a guardian ad litem must be an attorney (SCPA 404) and since his term of office, as to PG, has expired he is “disabled” within the meaning of CPLR 321(c) which provides that where an attorney for a party dies or is otherwise disabled no further proceedings shall be taken against the party for whom that attorney appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party, either personally or in such manner as the court directs. The appropriate action in these circumstances is to relieve the guardian ad litem of his duties as to PG and direct that petitioner’s counsel give her notice of the right to obtain counsel to represent her. Petitioner’s counsel may serve such notice of the right to obtain counsel upon PG by international certified mail, translated into Spanish or he may file her consent to the relief requested in this Court. Thirty days after such service upon her, if she fails to appear or consent, the compromise may be submitted for decision.

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