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Mother files Estate Litigation over Deceased Infant


Decedent’s daughter was born at Nassau County hospital. A case was filed against the hospital for medical malpractice by the decedent in behalf of her daughter. The decedent, who retained counsel to represent infant plaintiff, died while the lawsuit was still pending in court. In this Estate Litigation action, Letters of administration were issued to another daughter of decedent. Administrator-daughter substituted plaintiff in the malpractice case on behalf of the decedent’s estate.

A New York Probate Lawyer said a settlement was made for the malpractice suit between the parties. Based on the Infant’s Compromise Order (ICO) the Nassau County hospital shall issue check to defendant’s officer to be deposited in an investment account for the benefit of plaintiff. The check was issued but was never cashed and the investment account was never established. The same was never negotiated nor presented for payment. The check was received by the defendant’s officer but failed to neither open the investment account nor inform any of the parties that the check was missing.

Consequently, the officer hired the services of a locator to find the missing settlement check. The officer and locator entered into an agreement as to compensation fees upon recovery of the lost check. The locator also made an agreement with plaintiff’s grandmother, living in Alabama, for payment of fees when the lost check is found.

Upon establishment that the check can no longer be located, the County hospital issued another check as replacement of the missing one to the officer for the benefit of the infant. A Queens Probate Lawyer said the locator deposited the check in a money market account, in trust of the plaintiff, net of locator’s service fee.

Locator contacted the plaintiff’s grandmother to retain an Alabama lawyer as her representative in a proceeding to appoint her as infant’s guardian so that the locator could transfer the funds from the trust account to the guardian for the benefit of the infant. A Bronx Probate Lawyer said with the assistance of the locator, the Probate Court of Alabama appointed plaintiff’s grandmother as guardian and another person as conservator of infant’s property.

Thereafter, the Nassau County Probate Court ordered the locator to turn over the infant’s funds to the Nassau County lawyer appointed by the as guardian ad litem of the infant. The Court also ordered the guardian ad litem to remit said funds to court-appointed guardian in Alabama where the infant resided. Nassau County guardian ad litem sent a check payable to plaintiff’s brother, appointed as guardian, to Alabama guardian ad litem and Probate Court of Jefferson County Alabama.

No longer an infant, plaintiff commenced a suit against defendant’s officer, counsel and the law firm who represented her in the malpractice case for negligence, malpractice and conversion and for breach of contract of retainer against her counsel and its firm. Cross claims were filed against each of the defendant-parties in the lawsuit. The defendant counsel and law firm filed a third-party claim against the locator and defendant officer filed cross claims against locator and Nassau County hospital. The County hospital cross claimed.

The court found that the locator was in good faith in the performance of his duty to recover the lost check of plaintiff and there was no evidence to establish that he misappropriated the same. Failure of the plaintiff to oppose locator’s transfer of fund to plaintiff’s grandmother deemed as implied acceptance, which relieves the locator from any responsibility. As such, court ordered the dismissal of the third-party action and all cross claims against the locator.

Plaintiff showed, upon submission of evidence, a prima facie case against defendant officer breach of duty of care. The defendant officer even failed to establish that the exercise of due diligence and care to the plaintiff. Plaintiff’s motion for summary judgment against defendant’s officer on the issue of liability is granted by the court.

The plaintiff was not able to set up a prima facie proof against her former counsel and law firm. It was determined that their attorney-client relationship ended upon death of plaintiff’s mother and the responsibilities of the law firm ended after Infant Compromise Order was submitted in Nassau County Probate Court rendering denial of the motion for summary judgment against said law firm.

Administration and settlement of estate of a decedent require judicial proceedings were you need to be represented by a Nassau County Estate Attorney to safeguard your pecuniary interests as lawful heirs in the estate. In hiring any of our lawyers here at Stephen Bilkis and Associate, we could give you legal advice in handling probate of wills in court and also serve as your Nassau County Probate Counsel to represent you in such proceedings.

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