Matter of Simpson
Annotate this CaseDecided on November 19, 2008
Sur Ct, Bronx County
In the Matter of the Estate of Christine Simpson, Deceased.
291-A/2006/A
The only appearance is as follows:
Dalli, Marino, Kelly & Grossman, LLP (Salvatore Marino, Esq., of Counsel) for Thomas Simpson, petitioner.
Lee L. Holzman, J.
The administrator, the decedent's son, seeks leave to compromise causes of
action arising from the events leading to the decedent's death and to judicially account for the
settlement proceeds.
The decedent died intestate on September 18, 2004, as a result of alleged negligent nursing home care. In addition to the petitioner, her distributees are three daughters and a grandson, all of whom consent to the application. The New York City Department of Social Services indicates that it will not assert a claim for Medicaid benefits furnished to the decedent. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance and the lack of any unsatisfied debts or claims presented herein, the court grants the request to allocate the settlement proceeds equally between the personal injury and the wrongful death causes of action.
Counsel fees and disbursements are allowed in the sum requested. The net distributable proceeds are to be paid to the distributees in equal shares, with $13,300 of the share of the petitioner to be held in escrow jointly by counsel for the petitioner and the petitioner in an interest-bearing account pending a determination of the claim of Inheritance Funding Company, Inc., for money advanced to him. Although the court does not want to raise issues with respect to a claim that no party desires to litigate, it also, based upon the present state of the record, does not want to give its imprimatur to the underlying transaction by directing payment to the claimant pursuant to the agreement between the petitioner and the claimant. Similarly, and notwithstanding that the court does not want to prejudge any issues, the transaction does at least raise a question with respect to whether the agreement might be unenforceable on the alternative grounds that it is unconscionable or usurious (see Matter of Cole, NYLJ, Nov. 19, 2001, at 32, col 5; Echeverria v Linder, NYLJ April 1, 2005, at 23, col 1). Specifically, the troublesome facts are that the defendant had already agreed in writing to the settlement herein when the claimant paid $7,990 to the petitioner, and in consideration thereof, the petitioner agreed to pay to the claimant either $11,900 or $13,300 depending upon whether or not the payment was made within six months of the advance.
Accordingly, the sum of $13,300 is to be held in escrow jointly by the petitioner's counsel and petitioner until one of the following occurs: (1) the petitioner and claimant reach an agreement in writing with respect to the claim; (2) the further order of this court or; (3) in the event that the claimant does not make a claim in writing as provided herein within 30 days of the date that the petitioner's counsel mails to it a copy of this decision and interim order and the decree, the escrow funds may be paid to the petitioner without prejudice to the claimant's right to seek recovery from the petitioner. In the event that the claimant requests a determination from this court as to the [*2]enforceability of the agreement, it shall notify the court in writing within 30 days of the date that this decision is mailed to it and present papers in support of its application. A copy of such request and supporting papers shall be served upon the petitioner's counsel. The petitioner shall serve and file any responsive papers to the claimant's application within 15 days of receipt of the application. If any party desires a hearing on the enforceability of the agreement, a request is to be made in the papers submitted.
This decision constitutes the interim order of the court with respect to the claim. Decree signed with respect to the balance of the application.
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SURROGATE
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