Matter of Pesantez

[*1] Matter of Pesantez 2007 NY Slip Op 50963(U) [15 Misc 3d 1133(A)] Decided on May 8, 2007 Surrogate's Court, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2007
Surrogate's Court, Nassau County

In the Matter of the Application of Juan Chavez as Administrator of the Goods, Chattels and Credits which were of CARLOS PESANTEZ, Deceased. for leave to compromise a certain claim for wrongful death and to render and have judicially settled an account of the proceedings as such administrator.



315593



Foley, Griffin, Jacobson & Garia, LLP

1205 Franklin Avenue, Suite 390

Garden City, NY 1530

(Attorney for Petitioner)

Edward Brozinsky, Esq.

152 Lakebridge Drive Kings Park, NY 11754

(Guardian Ad Litem)

John B. Riordan, J.

In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. The decedent died as a result of injuries he sustained in a construction accident on June 7, 2000 in Bronx, New York. On October 13, 2000 this court issued limited letters to petitioner, Juan Chavez, decedent's uncle, to commence this action. The action was commenced on August 27, 2001. 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 March 20, 2006. This proceeding was commenced on December 5, 2006 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 December 22, 2006, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent's widow, Blanca Germania Guzman Marquez (SCPA 307[2]). Petitioner also served Blanca Germania Guzman Marquez with the citation on that date as the mother of decedent's infant daughters, Blanca Raquel Pesantez Guzman (DOB 2/8/1989) and Carla Leonor Pesantez Guzman (DOB 5/16/1993). Another citation was served that date on the infant, Blanca Raquel Pesantez Guzman since she was over 14 years old on that date (SCPA 307[4]). Service was complete on the date of the mailing thereof, i.e., December 22, 2006 (SCPA 309[2][a]). Citation was returnable January 10, 2007. No one appeared on that date. By order of this court dated February 1, 2007 a guardian ad litem was appointed for Blanca Raquel Pesantez Guzman (hereinafter "Raquel") and Carla Leonor Pesantez Guzman (hereinafter "Carla"). The guardian ad litem filed his report dated March 12, 2007.

In the guardian ad litem's report he points out that Raquel turned eighteen on February 8, 2007 after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over Raquel presumably because of her eighteenth birthday and the fact that she is no longer under a disability (SCPA 402[2]; SCPA 403[2]; SCPA 103[27]; SCPA 103[40]). The guardian ad litem reports that he communicated this fact to petitioner's attorney and suggested that he send a waiver and consent to Ecuador for Raquel's signature and file it with the Court. The guardian ad litem [*2]made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by Raquel.

The court disagrees with the guardian ad litem's contention that the court lacks jurisdiction over Raquel. She was properly served at a time when she was an infant and thus, except for her reaching majority, she would be bound by a determination made in the proceeding (SCPA 406).

However, the representation of an infant by a guardian ad litem terminates upon the infant's attainment of her majority (Matter of Fassig, 58 Misc 2d 252 [Sur Ct Nassau County, 1968]; see also Matter of Saviano, 14 Misc 3d 1212A [Sur Ct Kings County, 2006]; 1-15 NY Practice Guide: Probate and Estate Administration §15.06 [2007 ed.]). As Surrogate Bennett pointed out, by statute a guardian ad litem must be an attorney (SCPA 404) and since his term of office, as to Raquel, has expired he is "disabled" within the meaning of CPLR 321(c) (Matter of Fassig, 58 Misc 2d 252, 254 [Sur Ct Nassau County, 1968]). CPLR 321(c) provides that 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." The appropriate action in these circumstances is to relieve the guardian ad litem of his duties as to Raquel and direct that petitioner' s counsel give her notice of the right to obtain counsel to represent her (Matter of Fassig, 58 Misc 2d 252 [Sur Ct Nassau County, 1968]; Matter of Saviano, 14 Misc 3d 1212A [Sur Ct Kings County, 2006]; Matter of Fantauzzi, NYLJ June 24, 2004, at 33, col 4 [Surr. Ct. Richmond County]; Matter of Mulosmanaj, NYLJ Nov. 12, 2002, at 27, col 5 [Sur Ct Westchester County]; Matter of Appelbaum, NYLJ, Sept. 25, 2001, at 27, col 5 [Sur Ct Richmond County]. Petitioner's counsel may serve such notice of the right to obtain counsel upon Raquel by international certified mail, translated into Spanish or he may file her consent to the relief requested in this Court. Thirty days after such service upon her, if she fails to appear or consent, the compromise may be submitted for decision.

This is the decision and order of this Court.

Dated: May 8, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court

The appearance of counsel are as follows: