D.J.T. v Grenadier Realty Corp.

[*1] D.J.T. v Grenadier Realty Corp. 2012 NY Slip Op 51261(U) Decided on July 13, 2012 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2012
Supreme Court, Bronx County

D.J.T., III an infant by his M/N/G, B.C. and B.C. individually, Plaintiffs,

against

Grenadier Realty Corp., STEVENSON COMMONS ASSOCIATES, STEVENSON COMMONS ASSOCIATES, L.P., AND NYC DEVELOPMENT CORP., Defendants.



6661/04



B.B.

755 White Pains Road

Bronx, NY 10473

Kenneth Thompson, J.

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Petitioner's request for a partial withdrawal of infant DEAN JUNIOR TRUSTY, III's funds is DENIED.

Petitioners entered into an Infant Compromise Order on July 31, 2006, where Infant DEAN JUNIOR TRUSTY, III's received $3,807.67 as a settlement for personal injuries he sustained in the underlying lawsuit. These monies were deposited in Apple Savings Bank with a present balance of $4,958.27. The Order stated that these monies were "to be held for the sole use and benefit of the infant" and that "no withdrawals shall be made except upon the prior order of this Court." Petitioner is seeking to make a partial withdrawal of these funds in the amount of $1,800.00 for shoes, summer clothes, back to school clothes, school supplies and trips, an X-BOX 360, and games and accessories. These are expenditures that Petitioner has the legal obligations to provide her minor child, which cannot be provide for by funds left to her child.

Courts "must be sensitive to [their] statutory duty to preserve [an] infant's estate until his majority and to permit withdrawals only to the extent required for necessities and education that cannot otherwise be provided particularly since the needs of the infant will undoubtedly increase in ensuing years." Ahders v. Southampton Hospital, 90 AD2d 508. Additionally, "[i]nfants are entitled to expect funds entrusted to their guardian to be intact upon attaining majority and not a "bundle of orders" which spent the money for the necessities of life which parents are ordinarily responsible to furnish." In re DiOttaviano, 23 Misc 3d 1128A (citations omitted).

DEAN JUNIOR TRUSTY, III's "money does not constitute... a fund to be used for [his] clothing, maintenance and support ... , and it certainly does not constitute a [*2]supplementary source of supply for [Petitioner] designed to relieve [her] from [her] primary duty to support [her] offspring. De Marco v. Seaman, 157 Misc 390 (citing to Ulmer v. Terry & Tench Co., NY L. J. p. 641).

Petitioner has the legal obligation to provide support for her minor child until he reaches the age of majority. See Family Court Act § 413. So her child cannot be expected to buy his own clothes and shoes. See Gaffney v. Constantine, 87 NYS2d 131, 132. And an X-BOX 360, with "games and accessories" are not necessities. See De Marco, 157 Misc at 390 (listing examples of necessities as "higher education," "unusual medical care," or "treatment of teeth and eyes").

There is also no indication that the items Petitioner is seeking to provide to her child "cannot otherwise be provided" without resort to her child's funds. She claims that she subsists on $1,026 a month from SSI Disability, with monthly expenses totaling over $976, yet she has managed to provide $4,847 in necessities for her child since March 2011, including $960 for camp fees, $492 for bed linens and sportswear from Macy's, $2023 for furniture, $200 for youth football fees, $804 for electronics from Best Buy and $125 in sneakers from the Adidas store.

The foregoing shall constitute the decision and order of this Court.

APPEARANCE:

B.B.

755 White Pains Road

Bronx, NY 10473