Matter of Gayden
Annotate this CaseDecided on October 19, 2012
Sur Ct, Monroe County
In the Matter of the Estate of Janiyah Gayden, Deceased.
2007-1489/C
Frank B. Iacovangelo, Esq., Gallo & Iacovangelo, LLP, Rochester, New York, Monroe County Public Administrator, Estate Attorney.
Timothy R. Hedges, Esq., Cellino & Barnes, P.C., Rochester, New York, Trial Counsel.
Frank G. Maggio, Esq., Rochester, New York, Guardian Ad Litem for Raheen M. Gayden.
Joy A. Kendrick, Esq., Buffalo, New York, Attorney for Raheen M. Gayden.
Edmund A. Calvaruso, J.
FACTSJaniyah Gayden died on May 8, 2007, at fourteen months of age, as a result of burns sustained in a fire that occured at her apartment on June 15, 2006. The apartment was rented by Janiyah's mother, Taquanda Couser, and occupied by the Decedent, her mother, her infant half-brother, Ari Couser, and her mother's boyfriend, Richard Jones. Ari Couser and Richard Jones also died as a result of the fire. On August 27, 2007, Frank B. Iacovangelo, the Monroe County Public Administrator, was issued limited letters of administration, and thereafter retained Cellino & Barnes, P.C. to commence an action for wrongful death and conscious pain and suffering against the City of Rochester, the County of Monroe and the landlord, Anthony Wilson. After extensive discovery over a period of nearly four years, a settlement was reached with Mr. Wilson in the amount of $100,000.00, representing his full liability insurance policy limit, to be split equally between the three plaintiffs. The County and the City jointly offered $30,000.00 to split between the three plaintiffs. In addition, the Monroe County Department of Human Services agreed to reduce its claim against the Estate for the Decedent's medical care from $68,035.52 to $12,524.50.
Due to the Decedent's age and nature of her injuries, the Public Administrator proposed allocating the Decedent's portion of the settlement proceeds entirely to conscious pain and suffering, and filed a Petition to approve the proposed settlement pursuant to EPTL §5-4.6 on July 1, 2011. A Guardian ad Litem was appointed to represent the interests of the Decedent's father, Raheem M. Gayden, due to his incarceration after a felony conviction. At the August 23, 2011 court return date, both Guardian ad Litem Frank G. Maggio, Esq. and private counsel Joy A Kendrick, Esq. appeared on behalf of Raheen M. Gayden. Mr. Maggio was thereafter relieved, and Ms. Kendrick filed formal objections on behalf of her client on September 9, 2011. Ms. Kendrick argued that both the proposed gross settlement amount and the proposed distribution to the Decedent's estate were inadequate, and also disputed the alleged withholding of requested documents from the litigation file of Cellino & Barnes related to their reported disbursements. Additionally, Ms. Kendrick argued that Cellino & Barnes had an incurable conflict relating to the simultaneous representation of all three plaintiffs in the suit against the landlord.
On April 4, 2012, the Public Administrator filed an investigatory memorandum analyzing [*2]the liability and damages in the underlying litigation. The Public Administrator argued that the proposed settlement was appropriate based on issues of proximate cause and contributory negligence, as well the lack of pecuniary damages due to the young age and unconsciousness of the Decedent. Based on this review, the Public Administrator concluded that it was likely that the plaintiffs would have recovered nothing if the case had gone to trial.
Ms. Kendrick responded on behalf of her client via correspondence dated April 12, 2012 in which she explained her conclusion that the number of fire alarms in the Decedent's apartment was not code compliant. She did not address the other issues raised by the Public Administrator, including the problems of proximate cause, contributory negligence, damages, governmental immunity, and the evidentiary deficiencies of the case.
Numerous chambers conferences were held in an effort to reach a settlement between the parties, but Ms. Kendrick was adamant that her interpretation of the applicable building codes relating to smoke detectors was correct, and lead necessarily to an increased recovery on behalf of her client. The Public Administrator thereafter filed a Motion for Summary Judgment. In response, counsel for the Objectant filed an Affirmation opposing the Motion for Summary Judgment on July 30, 2012. On August 21, 2012, the Decedent's mother sent correspondence to the Court joining in the Public Administrator's Motion and stating that the Decedent's father was not involved in the Decedent's life, payed no child support, did not attend her funeral, and was unnecessarily holding up the settlement for selfish reasons.
OPINIONIt is the duty of the Surrogate in deciding whether or not to approve the settlement, "to exercise his judgment in the best interests of the parties interested." Matter of DeLong, 89 AD2d 368, 370, 455 N.Y.S.2d 896, 897 (4th Dep't 1982); Matter of Stanley, 79 AD3d 1620, 914 N.Y.S.2d 476 (4th Dep't 2010). In order to make this determination, the Court must judge the fairness and reasonableness of the settlement based on the strengths and weaknesses of the underlying case. Matter of Seventh Judicial District Asbestos Litigation, 4 Misc 3d 457, 460, 778 N.Y.S.2d 867 (Sup. Ct. Monroe Co. 2004). Accordingly, contrary to the Objectant's legal position, the disposition of the instant Motion for Summary Judgment does not hinge upon whether the smoke detectors were properly installed or operating, but rather on the totality of the case and surrounding circumstances.
Mr. Gayden's objection to the amount of the settlement is focused entirely on the theory that Monroe County and the City of Rochester are liable for the Decedent's death because had additional smoke detectors been installed, the Decedent's mother's boyfriend would have rescued the members of the household.
The Objectant repeatedly cites various residential and fire code provisions to argue that the Decedent's apartment was not code compliant. In particular, the Objectant argues that smoke alarms were required to be adjacent to all rooms "used for sleeping purposes." However, the City of Rochester did not adopt this provision for existing one and two family residences until early 2008. Section 90.10(A) of the City Code of Rochester, effective July 24, 2003 requires only one smoke detector adjacent to the sleeping areas in one and two family dwellings. There is no evidence before this Court that the Decedent's apartment was not in compliance with this requirement.
Furthermore, if the case had gone to trial, regardless of the status of the smoke detectors, obvious issues relating to the proximate cause of the Decedent's injuries and the contributory [*3]negligence of her caregiver would inevitably have arisen. See, e.g. Acevedo v. Audubon Management, 280 AD2d 91, 96, 721 N.Y.S.2d 332, 336 (1st Dep't 2001). In addition, the liability of the County and the City may have been dismissed on the basis of the doctrine of governmental immunity, which prevents the imposition of liability upon a municipality for failure to enforce a statute or regulation. See, e.g. Carter v. City of New York, 6 Misc 3d 1007(A), 800 N.Y.S.2d 343 (Sup. Ct. Kings Co. 2004) (dismissing claims against the City of New York for failure to properly inspect inoperable fire escape and sprinkler system after death of a child due to house fire).
Absent issues of liability, the adequacy of the proposed settlement must also be analyzed in relation to the pecuniary injuries suffered as a result of the Decedent's death. EPTL§ 5-4.3. Despite the extensive mental anguish suffered by a family as a result of the death of a young child, there is rarely adequate proof of economic circumstances justifying a jury to award damages. See, Parilis v. Feinstein, 49 NY2d 984, 429 N.Y.S.2d 165 (1980), Lopez v. Gomez, 305 AD2d 292,761 N.Y.S.2d 601 (1st Dep't 2003). Further, Mr. Gayden would most likely not be able to provide evidence of any expectation of support from his minor child due to his lengthy incarceration.
Mr. Gayden argues that it is inequitable for the settlement proceeds to be shared equally by the parties because Taquanda Couser will receive a greater share of the proceeds than he will. This argument fails to recognize that Ms. Couser was injured in the fire as well. Through this settlement, Ms. Couser is being compensated not only as a beneficiary of the estate of the Decedent, but also for her own physical injuries due to the fire, and as a beneficiary of the estate of her other child, Ari Couser. Mr. Gayden is not the father of Ari Couser, and was not in the apartment at the time of the fire, so did not suffer pecuniary damages from injuries sustained.
The equal division of the settlement proceeds among the three plaintiffs results in a reasonable recovery for the Decedent. While she was hospitalized the longest, there is no evidence that the Decedent ever regained consciousness. She was asleep at the time the fire began, and it spread quickly. At trial, the plaintiff would have had the initial burden to prove consciousness after the accident to justify an award of damages for pain and suffering. See, Fiederlein v. New York City Health & Hosps. Corp., 56 NY2d 573, 450 N.Y.S.2d 181 (1982); Cummins v. County of Onondaga, 84 NY2d 322, 618 N.Y.S.2d 615 (1994); Blunt v. Zinni, 34 AD2d 882, 302 N.Y.S.2d 504 (4th Dep't 1969). While there may be circumstantial evidence of her consciousness sufficient for a jury to award her a greater sum, the likelihood is not such that this court will find the proposed settlement unreasonable.
The remaining concern of the Objectant concerned the disbursements requested by Cellino & Barnes. The costs were itemized in their filings, and reviewed both by the Public Administrator and the Court in chambers conferences with Ms. Kendrick, and deemed to be legitimate and reflective only of costs incurred in the action on behalf of the Decedent.
Therefore, in accordance with the above decision, it is hereby
ORDERED, ADJUDGED and DECREED, that the Objections to the Petition to compromise the actions commenced by the Estate of Janiyah R. Gayden are hereby dismissed; and it is further
ORDERED, ADJUDGED and DECREED, that the Administrator of the Estate of Janiyah R. Gayden is hereby empowered to compromise and settle the claim for pain and suffering and wrongful death against Anthony Wilson, the City of Rochester, and the Monroe County Department [*4]of Social Services upon payment of the sum of $33,333.33 by the insurer of Anthony Wilson; and it is further
ORDERED, ADJUDGED and DECREED, that the Administrator of the Estate of Janiyah R. Gayden is hereby empowered to compromise and settle the claim for pain and suffering and wrongful death against the City of Rochester and the County of Monroe upon the payment of the sum of $10,000.00; and it is further
ORDERED, ADJUDGED and DECREED, that the entire recovery be allocated to the cause of action for the pain and suffering of the Decedent; and it is further
ORDERED, ADJUDGED and DECREED, that the final account of the Estate of Janiyah R. Gayden shall be judicially settled and allowed in accordance with the annexed Decree.
October 19, 2012Edmund A. Calvaruso
Hon. Edmund A. Calvaruso, Surrogate
ENTER:
OCA e-submission: no Judge E-Mail
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