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Plaintiff Moves to Vacate Prior Court Order Regarding Settlement of Proceeds


A Probate Lawyer said this matter arises out of a fatal, three-vehicle accident which occurred on September 25, 2006 on Interstate 87 in Ulster County, New York. At the time of the accident, the decedent was a front seat passenger in a vehicle being operated by defendant AS which, at the time in question, was proceeding north on I-87 near the Kingston exit. At this point in time, AS was allegedly cut-off by a pick- up truck towing a horse trailer (owned and operated by defendants L and RRs, respectively) which attempted to make a U-turn from the northbound shoulder of I-87, purportedly ten feet in front of the AS vehicle. After contact with the pick-up truck, AS’s Jeep was apparently propelled into the southbound lanes of I-87, where it was struck by a vehicle owned by defendant Y and operated by defendant LJ.

There is no dispute that Mr. V died as a result of the massive injuries which he sustained in this accident. However, as shall presently appear, a dispute has arisen as to the accuracy of AS’s claim that the decedent was asleep at the time of the initial impact and, therefore, incapable of experiencing any degree of pre-impact terror or conscious pain and suffering in the above accident.

An Estate Lawyer said that on his motion for leave to intervene pursuant to CPLR 1012, 1013, CX contends that the Order of this Court, dated August 10, 2009, should be vacated pursuant to CPLR 5015, and the matter removed or transferred to the Surrogate’s Court, Richmond County, for further proceedings to judicially account for the settlement proceeds. The order in question provides, in relevant part, for the settlement of plaintiffs’ cause of action for wrongful death for the sum of $300,000.00 and the voluntary discontinuance, with prejudice, of decedent’s personal injury action. In support of his motion, CX maintains that this court’s allocation order is invalid since all of the interested parties who might be adversely effected were not joined in the compromise proceeding.

Queens Probate Lawyers said that more particularly, CX argues that as a potential estate creditor by virtue of his pending claim for personal injuries, this action should not have been brought before the Court for final settlement approval without providing him with notice and an opportunity to be heard. In this regard, CX asserts that since the recovery of damages in wrongful death belong exclusively to the decedent’s distributees as monetary compensation for their pecuniary loss as a result of decedent’s death, the allocation of the settlement proceeds exclusively to plaintiffs’ wrongful death action operates to deprive any creditors of the Estate of access to that portion of the recovery which might otherwise have been allocated to the decedent’s conscious pain and suffering, which is an Estate asset against which they would be entitled to proceed.

Long Island Probate Lawyers said that in opposition, plaintiffs (Administrator of the estate of Mr. V) assert that CX has no standing to intervene since his “claim” against the Estate for, e.g., assault and battery, amounts to nothing more than a series of accusations based on events wholly unrelated to the September 25, 2006 accident. Moreover, plaintiffs argue that no pain and suffering was experienced by the deceased, since the only eyewitness to the event (AS) maintains that CX was sound asleep at the time of the accident and was killed instantly.

Finally, plaintiffs maintain that CX was not entitled to notification of the submission of the compromise order to this Court inasmuch as the compromise of a wrongful death action by a Justice of the Supreme Court pursuant to EPTL 5-4.6 does not require the participation of any party other than those named as plaintiffs or defendants in the action. Finally, CX is claimed to be incapable of producing and has failed to present any factual support for the reallocation of any portion of the settlement money to the decedent’s conscious pain and suffering. As a result, plaintiffs’ contend that the proposed intervenor has presented no legitimate legal challenge to the way in which this Court compromised the action.

To the extent relevant, EPTL 5-4.6 paragraph (a) subparagraph (1) was amended in 1992 to direct the Supreme Court, except for good cause shown, to transfer any action for wrongful death to the surrogate’s court which issued the letters of administration for determination of the issues of allocation and distribution of the proceeds and related matters after a compromise has been approved in the Supreme Court. Although the amended statute was subsequently construed by the Court of Appeals to render the above transfer wholly discretionary, it was nevertheless recognized that the nature of the amendment was expressive of a Legislative determination that Surrogate’s Court was the preferred forum for the allocation and distribution of damages following the settlement of the action in the Supreme Court. This, the Court noted, was the apparent intent of the amendment, i.e., to remove the allocation and distribution of an approved settlement of the substantive causes of action to a single forum in which all of the interested parties including potential creditors, could be joined.

Consonant with the “permissive” nature of the transfer approved in Pollicina, this Court must reject movant’s contention that the order of this Court dated August 10, 2009 was in any way unauthorized or invalid, nor was movant entitled to intervene in this action as a matter of right under CPLR 1012. Nevertheless, it is the determination of this Court that the movant be permitted to intervene to the limited extent previously noted, and to vacate the allocation of damages contained in its August 10, 2009 Order in deference to the aforementioned Legislative preference.

this decision to vacate that portion of its August 10, 2009 Order which allocated the settlement proceeds entirely to plaintiffs’ wrongful death action, this Court finds persuasive the rationale expressed in somewhat similar circumstances by Surrogate Holzman of the Bronx in Matter of Torres. As therein observed, “As a general rule, where the compromise of an action is contemplated, the defendant is concerned only about the total amount that is to be paid to settle all of the causes of action alleged in the complaint and could not care less about the allocation of the settlement proceeds between the wrongful death and personal injury causes of action. As a result, where, as here, the complaint alleges causes of action for both wrongful death and personal injury.

On this view of the case, since it is undisputed that CX heretofore was afforded no opportunity to be heard in this case on the issue of the allocation of the settlement proceeds between plaintiffs’ wrongful death and personal injury causes of action, it is believed that the interests of justice will best be served by vacating the allocation portion of this Court’s August 10, 2009 Order authorizing the settlement of the wrongful death cause of action for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS, and substituting therefor a provision (1) authorizing the settlement of plaintiffs’ action for, e.g., personal injury and wrongful death, for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS and (2) referring the administration of the proceeds of the approved settlement to the Surrogate’s Court, Richmond County for further proceedings to determine the issues of allocation and distribution of proceeds and related matters. It is hereby ORDERED, that the proposed intervenor, CX, shall settle an order on notice.

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