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Court denies petition for summary judgement approving compromise petition allocating the entire settlement to wrongful death where there was evidence of conscious pain and suffering. Matter of Qyra 2014 NY Slip Op 24187


In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit.  On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement.  The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death.  The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both.  The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is  added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence.  That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

Particularly when an estate has minimal assets compared to its debt, creditors tend to object when a proposed allocation is 100% wrongful death. Personal representatives are required to pay debt owed by estates out of estate assets.  When an estate has few assets, creditors may end up not getting paid simply because the estate does not have enough money.  Money from a lawsuit related to the decedent’s death may be the only way for creditors to get paid.  If none of the money is allocated to personal injury, the creditors are essentially out of options.  This is the situation that the objectant in the Matter of Qyra was seeking to avoid.

In the Matter of Qyra, the objectant claimed that she suffered personal injuries in an October 2009 vehicle accident caused by Qyra’s negligence. Her intention was to bring a lawsuit against the estate to recover damages. If her lawsuit against Qyra’s estate is successful, the estate would owe her money.  To ensure she would be able to collect, she objected to the allocation.  It was in her interest for at least a portion of the money to be allocated to personal injury.

For the court to allocate a portion of the award to personal injury, there must be evidence that the decedent suffered conscious pain and suffering. In other words, the decedent must not have died instantaneously.  The decedent must have suffered physical pain from the tree branch striking him or must have suffered emotionally from observing the tree branch about to strike him.

The administrator wanted the entire amount to be allocated as a wrongful death award.  As the decedent’s surviving spouse and his distributee, she would receive a portion if not all of the award. Thus, the administrator argued that the decedent died instantly and did not experience pain and suffering.  However, the administrator did not offer medical proof to support her position.  On the other hand, the objectant offered medical evidence from a doctor to support her position that the decedent did suffer before he died.  Based on a review of the autopsy, toxicology, neuropathology, EMS, police, and the investigation reports, the doctor concluded that the decedent suffered pre-impact terror as well as conscious pain and suffering after the impact for up one minute.

Because there was an issue as to whether the decedent experienced conscious pain and suffering, the court denied the administrator’s request to issue a decree allocating the entire settlement to wrongful death.

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