Published on:

Court Decides Proceeding for Leave to Compromise for Wrongful Death


This case was initiated by JC as administrator of the goods, chattels and credits which were of CP, deceased – for leave to compromise a certain claim for wrongful death and to render and have judicially settled an account of the proceedings as administrator – brought before the Surrogate’s Court of the City of New York, Nassau County.

This is a proceeding for leave to compromise an action for wrongful death and conscious pain and suffering.

On 7 June 2000, the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. He was survived by his wife and two children all of whom presently reside in Ecuador. On 13 October 2000, the court issued limited letters to petitioner, JC, decedent’s uncle, to commence the instant action.

On 27 August 2001, the wrongful death action was commenced. On 20 March 2006, 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.

Brooklyn Probate Lawyers said on 5 December 2006, the instant proceeding was commenced to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance among the distributees who suffered a pecuniary loss.

On 22 December 2006, pursuant to SCPA 307[2], the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow, BGGM. Petitioner also served BGGM with the citation on that date as the mother of decedent’s infant daughters, BRPG (date of birth: 8 February 1989) and CLPG (date of birth: 16 May 1993). On that same day, pursuant to SCPA 307[4], another citation was served on the infant, BRPG, since she was over 14 years old at the time. On 22 December 2006 and pursuant to SCPA 309[2][a], service was also completed on the day of the mailing thereof. Citation was returnable on 10 January 2007. Unfortunately, no one appeared on that date. On 1 February 2007, by order of the court, a guardian ad litem was appointed for BRPG and CLPG. 1On 2 March 2007, the guardian ad litem filed his report dated.

According to the guardian ad litem, in his report, BRPG turned eighteen on 8 February 2007 after he was appointed but before finalization of his report, he has examined the file in this matter and concludes that the court lacks jurisdiction over BRPG presumably because of her eighteenth birthday and the fact that she is no longer under a disability in accordance with SCPA 402[2], SCPA 403[2], SCPA 103[27] and SCPA 103[40], and he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for BRPG’s signature and file it with the Court. Thereafter, the guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. BRPG never filed a waiver or consent to the relief requested.

The court disagreed. According to the court, the guardian ad litem’s contention that the court lacks jurisdiction over BRPG was incorrect. Based upon the records, the court found that BRPG was properly served at a time when she was an infant. Thus, except for her reaching majority, BRPG is bound by a determination made in the proceeding pursuant to SCPA 406.

However, the representation of an infant by a guardian ad litem terminates upon the infant’s attainment of her majority. This was discussed in the cases entitled Matter of Fassig, 58 Misc 2d 252 [Sur Ct Nassau County, 1968] and Matter of Saviano, 14 Misc 3d 1212A [Sur Ct Kings County, 2006], and in 1-15 NY Practice Guide: Probate and Estate Administration §15.06 [2007 ed.].

As Surrogate B pointed out in the case entitled Matter of Fassig, supra, a guardian ad litem must be an attorney in accordance with SCPA 404 and since his term of office, as to BRPG, has expired he is “disabled” within the meaning of CPLR 321(c).

Under CPLR 321(c), 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.” As discussed in the cases entitled Matter of Fassig, supra; Matter of Saviano, supra, Matter of Fantauzzi, NYLJ 24 June 2004, at 33, col 4 [Surr. Ct. Richmond County], Matter of Mulosmanaj, NYLJ 12 November 2002, at 27, col 5 [Sur Ct Westchester County], and Matter of Appelbaum, NYLJ, 25 September 2001, at 27, col 5 [Sur Ct Richmond County], under these circumstances, the appropriate action is to relieve the guardian ad litem of his duties as to BRPG and direct that petitioner’ s counsel give her notice of the right to obtain counsel to represent her. The petitioner’s counsel may serve such notice of the right to obtain counsel upon BRPG by international certified mail, translated into Spanish, or he may file her consent to the relief requested before the Court. Thereafter, if she fails to appear or consent, the compromise may be submitted for decision thirty days after such service upon her.

Contact Information