Matter of Louis

[*1] Matter of Louis 2008 NY Slip Op 52246(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on November 5, 2008 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 12, 2008; it will not be published in the printed Official Reports.

Decided on November 5, 2008
Supreme Court, Kings County

In the Matter of the claim of Marie Nicole Louis, mother and natural guardian of EMILY LOUIS, Petitioner



39986/04



Steven R. Hymowitz

Fellows, Hymowitz, Epstein, P.C.

254 South Main Street, Suite 400

New City, NY 10956

845-634-3775

Francois A. Rivera, J.

By order to show cause dated September 10, 2008, Marie Nicole Louis (hereinafter the petitioner) moves pursuant to CPLR 1211 and 22 NYCRR §202.67 (f) and (g) to invade the trust of her daughter Emily Louis (hereinafter the infant).

The petition is supported by petitioner's affidavit, an affirmation of her counsel and ten annexed exhibits. Exhibit 1 is a copy of the Notice of Petition and the petitioner's affidavit submitted in support of the underlying Infant's Compromise order back in 2004. Exhibit 2 is a copy of this court's order dated February 17, 2005, which approved settlement of the infants' claim for the sum of $100,000.00. Exhibit 3 is a bank account statement from Bank of America, where the infant's settlement funds are deposited, showing a current balance of $64,061.01. Exhibit 4 is a copy of a discharge notice dated October 13, 2007, issued by petitioner's former employer. Exhibit 5 is a copy of the petitioner's 2006 and 2007 income tax returns and W-2 statements. Exhibit 6, is a document demonstrating petitioner's receipt of unemployment benefits in the amount of $247.00 for the week of February 23, 2008. Exhibit 7 is petitioner's employment pay-stub showing a net payment of $207.86 for the week of July 5, 2008. Exhibit 8 is a bank statement from Bank of America showing that petitioner's regular savings account is overdrawn by $35.00 as of July 10, 2008. Exhibit 9, is a mortgage statement dated June 16, [*2]2008, showing petitioner's past due mortgage amount of $3289.72, current payment due amount of $1644.86, late charges and other charges for a total due of $5510.30 on her home mortgage. Exhibit 10 is petitioner's overdue electric bill in the amount of $358.47. Exhibit 11 is evidence of the infant's receipt of medical treatment.

The following facts are undisputed. The infant was born in 1993 and is now 15 years old. In the summer of 2001, the infant and her sibling, Sheila Marescot, were temporarily staying with relatives at a premise in Brooklyn. On June 21, 2001, a fire broke out at the Brooklyn premise which caused burn injuries to the infant's larynx, forehead, ears and knees and the death of Sheila Mascot and another infant. The infant recovered from the smoke inhalation damage to her lungs and larynx but sustained residual scarring to her ears and knees. On December 8, 2004, this court approved a compromise of the infant's claim against the owner of the premise for the total sum of $100,000.00. Of that amount, this court approved payment to petitioner's counsel in the amount of $33,333.34. The same counsel is representing the petitioner in the instant petition.

Petitioner's affidavit and annexed exhibits demonstrate the following facts. Petitioner has received no formal education past the fourth grade, is a single parent and is the sole provider of her family's support. The infant's father is seventy years old, has always resided in Haiti and has never paid child support or aided in payment of household expenses. In October of 2007, petitioner lost the job she held for twenty years with Aventura Plaza Nursing and Rehab Center. Her annual employment earnings before her discharge was approximately $20,000.00. Thereafter, she began receiving unemployment benefits in the amount of $247.00 weekly which expired as of March 2008.She is currently working part time at a supermarket and earns a net take home pay of about $208.00. Petitioner continues to seek full time employment but has been unsuccessful. Petitioner claims sole ownership of the premises. She states that she took a second mortgage on her home and has no additional equity in the home to draw upon. The mortgage payments on her home are paid to Option One Mortgage. Petitioner's mortgage account statement is partially displayed on the bottom of exhibit 4 and shows a principal balance of $204, 296.97. Her annexed mortgage statement dated June 16, 2008, shows petitioner's current payment due of $1644.86, past due payment amount of $3289.72, late charges and other charges for a total amount due of $5510.30. Petitioner's savings account is overdrawn, she is in arrears for utility service, she is behind on at least three months of mortgage payments and has no resources available to bring her mortgage and utility current or to pay them on an ongoing basis.

Petitioner seeks a partial withdrawal of the infants' funds in the amount of $25,000.00. She wishes to use the $25,000.00, to pay her mortgagee $15,000.00, her counsel on the instant petition $2,500.00 and to hold on to $7,500.00 to draw upon for her child's unspecified expenses in the future.

APPLICABLE LAW

CPLR 1211 (a) provides as follows: Allowance for infant's support. (a) Petition to supreme court, county court or surrogate's court; contents. A petition to the supreme court, county court or the surrogate's court for the application of an infant's property or a portion thereof to the infant's support, maintenance or education shall set forth in detail:1. the amount and nature of the infant's property, where it is situated and how invested, his income from such property or any other source and any claim against the infant;2. whether or not the infant's parents are living and, if either of them is living, all circumstances relative to their ability to support the infant, and, if neither of them is living, the names of other persons legally obligated to support the infant and the circumstances relative to their ability to support the infant; and3. the terms of any previous order made by any court within or without the state for similar relief and the disposition made of any property pursuant thereto.

The matters that should be considered when applications for withdrawals of infant funds are requested are fully set forth in DeMarco v. Seaman, 157 Misc 390 [Sup Ct Queens County 1934]). Justice Cuff set forth the underlying principles which courts have since applied when faced with like situations: It is the duty of the court to protect the child's fund until he reaches his majority; it is the duty of the parent to support the child until that event; it is the duty of the petitioner to submit detailed information which would justify the court's authorization to deplete the infant's funds for extraordinary expenses beneficial to the child and not affordable to the parents, and such approved expenditures should be disbursed directly to the creditor (Matter of Marmol, 168 Misc 2d 845 [N.Y.Sup. 1996]); citing DeMarco v. Seaman, supra. The detailed information required to be joined with the petition for withdrawal of the infant's fund, as outlined in DeMarco, supra, was emphasized and enumerated in Matter of Stackpole, 9 Misc 2d 922 [Mun Ct, Queens County 1957]) and codified in Uniform Rules for Trial Courts 22 NYCRR §202.67(f)

Among the items to be included in the application under section 202.67(f) are :

(1) a full explanation for the purpose of the withdrawal;

(2) a sworn statement of the reasonable cost of the proposed expenditure;

(3) the infant's age;

(4) the date and amounts of the infant's and parents' recovery;

(5) the balance from such recovery;

(6) the nature of the infant's injuries and present condition; (7) a statement that the family of the infant is financially unable to afford the proposed expenditures;

(8) a statement as to previous orders authorizing such expenditures; and

(9) any other facts material to the application.

Subdivision (g) of 202.67 provides "No authorization will be granted to withdraw such funds, except for unusual circumstances, where the parents are financially able to support the infant and to provide for the infant's necessaries, treatment and education." Two separate standards for approval of withdrawal of funds are imposed under 202.67(g) withdrawals for "unusual circumstances"those necessitated by the child's disabilityneed not be predicated upon the parents' inability to pay for them; those for "necessaries, treatment and education" must [*3]be supported by clear proof that the parents are too poor to provide them (Matter of Marmol, supra). An application for either expenditure must comply with 202.67(f) an that sufficient facts be submitted to enable the court to determine, without conjecturing, that support of the child is not within the financial means of the parents (Id.) This is a departure from the DeMarco v Seaman rule, which held that the child's personal injury recovery was so inviolable that only extraordinary expenses justified withdrawals and that social agencies were to provide for a child's support where parents financially could not (Id).

DISCUSSION

The court advised petitioner's counsel that if further information was needed from the petitioner, the court would waive her personal appearance and was amenable to conducting a telephone conference on record to avoid any travel expenses from Florida.

Petitioner's application is not predicated on unusual circumstances necessitated by the child's disability or injury. Rather, the claim is predicated on the child's necessities. As such, petitioner must support by clear proof that she is too poor to provide the necessities in question.

The court has taken judicial notice of the Kings County Surrogate Court clerk's record pertaining to the wrongful death claim for Sheila Marescot, the infant's sibling who perished in the fire (See Khatibi v. Weill, 8 AD3d 485). The records are maintained under index number 1527/2004. These records show that, by petition signed on November 18, 2004, the petitioner made sworn allegations of fact in support of the application to compromise the wrongful death claim of her daughter, Sheila Marescot. She stated, among other things, that she lived with Julio Paul Louis, the deceased infant's father, at 1393 NW 145th Street, Miami, Florida 33161 and that he was 66 years old. Petitioner requested that the Kings County Surrogate approve the $100,000.00 offered by Allstate Insurance to settle the wrongful death claim for Sheila Marescot. Petitioner requested that the $65,530.26 remaining after payment of disbursements and fees to counsel, be divided 50% to Julio Paul Louis and 50% to the petitioner. Petitioner's counsel for the wrongful death claim is the same counsel in the instant petition. The Surrogate ultimately approved the proposed compromise, and approved payment of $32,947.71 to Julio Paul Louis and a similar amount to the petitioner. It is noted that in the instant petition, neither the petitioner's affidavit nor her counsel's affirmation state the name of the infant's father. The court assumes that Julio Paul Louis is the father of Sheila Marescot and the infant Emily Louis. The Surrogate Court records raises question about petitioner's claim that she has always been the sole provider for her family, that the infants' father has always resided in Haiti and that he has never provided support to the infant.

For the foregoing reasons, the application is denied without resolving these questions and without the need for further inquiry. Petitioner is seeking forty per cent of the infant's funds to pay the mortgagee directly; approximately $5,000.00 in mortgage arrears and $10,000.00 for an unspecified term of future payments. She also seeks $7,500.00 to have on hand and readily available to meet the infants' unexplained expenses for an unspecified term in the future. The record does not show the present value of the home and the total amount of encumbrances on the home. Petitioner's affidavit makes an undocumented and unexplained statement that she took a second mortgage on her home and that no equity exists on the home to draw upon. Petitioner did not provide evidence of her exclusive ownership of the home or of the total amount of encumbrances on the property. [*4]

The record also does not explain how the petitioner expects to make mortgage payments in the future without the infants' funds. Clearly a monthly mortgage of $1600.00 is unaffordable with a weekly income of approximately $200.00. If the petitioner and the infant are to lose their current home by a foreclosure action and eviction because the petitioner cannot afford it, then the best interest of the infant is not served by depleting 40% of her protected fund to merely delay the inevitable. Furthermore, the purported necessity of the infant in question is to avoid a potential foreclosure on the current home. There is no evidence that petitioner cannot afford a less expensive residence or that there is some unique or specific benefit to the infant, related to her injuries, to remain in the current residence.

The court is not unsympathetic to the unfortunate circumstances of the petitioner. However, it is the interest of the child that is paramount. The court cannot help but wonder how the petitioner obtained a $200,000.00 mortgage with an income of $20,000.00. How did she get a second mortgage? Is it possible she was a victim of predatory mortgage lending? If so, she may have strong defenses to foreclosure. Petitioner's counsel claims upon information and belief that petitioner is ineligible for public assistance. This claim is also undocumented and unexplained. Has the petitioner considered bankruptcy protection or applying for government benefits? Either course may help the petitioner keep her home without seeking a depletion of the infant's funds.

Clearly, the petitioner's net income of approximately $200.00 weekly is insufficient to make the mortgage payments of $1600.00 but it may be sufficient to meet the child's needs in a less expensive residence or in the same residence with the benefit of bankruptcy protection. In the last analysis, these funds are for the hurt and injury sustained by the infant (Caban v Lonkey, 53 Misc 2d 171 [N.Y.City Civ. Ct 1967]) They are not community property for family use (Id).

The application to release part of the infant's settlement proceeds for the reasons set forth is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.