Matter of Polito

[*1] Matter of Polito 2006 NY Slip Op 50786(U) [11 Misc 3d 1090(A)] Decided on May 3, 2006 Sur Ct Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2006
Sur Ct

In the Matter of the Estate of Anthony F. Polito, Deceased



732-M/05



Anthony C. Casamassima, Esq. for Marie Polito, petitioner

Lee L. Holzman, J.

This is an application by the administratrix, the decedent's spouse, to compromise causes of action arising from the decedent's death and to distribute the proceeds.

The decedent died intestate on July 18, 2000 from alleged medical malpractice. The decedent's distributees are the petitioner and three children, one whom was under the age of 21 years at the time of the decedent's death. No opposition has been filed to the relief requested which, inter alia, seeks the allocation of the net proceeds to the wrongful death action and the distribution of the net distributable proceeds in accordance with Matter of Kaiser, 198 Misc 582 (1950). Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance and the lack of any debts or claims being presented against the estate that are not being satisfied herein, the request to allocate the entire proceeds to the wrongful death cause of action is approved.

Counsel fees and disbursements shall be paid as agreed to by respective counsel in a stipulation entered into before the Honorable Sallie Manzanet, J.S.C.. The sum of $2,017.00 is to be paid to the petitioner in her individual capacity in reimbursement of the decedent's funeral expenses. The net distributable proceeds are to be distributed in the following percentages: 77% to the petitioner in her individual capacity and 23% to Christa Polito. As part of this application the petitioner has requested that a certain sum plus a per diem amount be paid to Law Cash, Inc. pursuant to an agreement she signed with that entity. The petitioner alleges that the monies were used after the decedent's death to support herself and her family. Inasmuch as the petitioner appears to be a competent adult, any portion of her share of the recovery, or if necessary her entire share, may be used in payment of that obligation. However, the court is not aware of any provision of the law that would obligate an infant to use her own funds to repay money advanced to her parent. Accordingly, no deduction may be made from the share of the former infant in payment of the petitioner's debt to Law Cash, Inc. even if the obligation cannot be satisfied entirely from the [*2]petitioner's share. However, since Law Cash, Inc. was not made a party to this proceeding, the petitioner shall serve a copy of this decision and the proposed decree with notice of settlement on Law Cash, Inc. together with an affidavit computing the amount owned to Law Cash, Inc.

Proceed accordingly.

SURROGATE