Matter of Charles v Hussain

[*1] Matter of Charles v Hussain 2007 NY Slip Op 51066(U) [15 Misc 3d 1140(A)] Decided on May 9, 2007 Supreme Court, Nassau County Austin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2007
Supreme Court, Nassau County

In the Matter of the Application of Marie Charles, mother and natural guardian of Samantha Charles, an infant, Plaintiff,

against

Deryck Hussain and Engrid Dataram, Defendants.



11204-05



Counsel for Plaintiff

Cean Oewns Law Firm, LLC

23 Ocean Avenue

Valley Stream, New York 11580

Leonard B. Austin, J.

Samantha sustained personal injuries in an accident. Her action was settled. By Infant's Compromise Order granted on December 12, 2006, this Court approved the settlement of the action. The Infant's Compromise Order directed that Samantha's share of the settlement; to wit: $90,000.00 be deposited in an account with the Roslyn Savings Bank for her sole benefit.

Samantha is presently 13 years old having been born on July 24, 1993.

Samantha and Marie presently reside in Germantown, Maryland. Samantha's father is alleged to live in Haiti. Marie and Samantha have no contact with him. He does not provide any support for Samantha.

Marie seeks to withdraw the sum of $40,000 from Samantha's account to pay part of the purchase price of home being constructed in Frederick, Maryland.

DISCUSSION

New York common law and statutes require a parent to provide support for a child. Family Court Act §413(1). See, 11 NY Prac, New York Law of Domestic Relations §16:1. Maryland places similar obligations upon parents to support their minor children. See, Garay v. Overholtzer, 332 Md. 339 (1993); and Moore v. Tseronis, 106 Md. App. 275 (Ct. Special App., 1995).

CPLR 1206(c) prohibits withdrawals of funds received on account of a settlement of an action for personal injuries without court order. Withdrawal is permitted only to

the extent required for necessities or education which the parent cannot otherwise provide. Matter of Dagani, 226 AD2d 197 (1st Dept. 1996).

"A complete explanation for each and every expenditure must be made; the propriety and necessity thereof is fully required by the statute, and the financial means of the parents, particularly with regard to supplying the child's necessaries, must also be fully stated (citations omitted), since such expenditures allowed to be charged to withdrawn from the infant's estate must be for an urgent purpose over and above the usual or ordinary necessities of life, and must be shown to be actually helpful to the reduction of the consequences of the injury with occasioned the estate (citation omitted). Furthermore, the court must exercise its discretion unfavorable to the withdrawal application, unless there is presented unequivocal proof to substantiate the absolute necessity of the withdrawal within the purview of CPLR 1211 (subd [a], par 2) and, to do so, there must be a full, open and clear meeting of the statutory criteria therein provided." Manikas v. Misericordia Hosp., 111 Misc 2d 323, 324 (Sup. Ct. Queens Co. 1981). See, Application of Dagani, supra; and Ahders v. Southampton Hosp., 90 AD2d 508 (2nd Dept. 1982). See also, 67 NY Jur2d Infants and Other Persons Under Legal Disability §207.

The statute has been supplemented by 22 NYCRR 202.67(f), which requires an application to withdraw funds on deposit on behalf of an infant to contain, inter alia, a statement of the nature of the infant's injuries and current condition and a statement that

the infant's family is financially unable to afford the proposed expenditure. See, 22 NYCRR 2-202.67(f)(6),(7). [*2]

For the protection and benefit of the infant who sustained the injury and for whom the account was established, there must be strict compliance with § 2-202.67. The papers submitted to the Court in connection with this application fail to meet that standard. That is, the papers do not contain a statement of Samantha's injuries or current condition. More importantly, the papers fail to indicate why Marie is unable to afford the house or why the purchase of the home is a necessity for Samantha.

Although the nature of Marie's employment is not stated, the papers indicate that Marie earns approximately $1,577 per week, or $82,000 per year. Marie has annual expenses for housing, utilities, food and clothing of approximately $21,000. Even making an allowance for taxes and other living expenses, Marie's income well exceeds her annual expenses. Despite having income far in excess of her expenses, Marie avers that she has savings of only $5,000.

A recovery on behalf of an infant is not, and cannot be, a windfall for a parent. Marie has failed to produce "unequivocal proof" of the necessity of this expenditure.

Accordingly, it is,

ORDERED, that the application of Marie Charles for leave to withdraw funds on deposit for the benefit of Samantha Charles, an infant, is denied without prejudice.

This constitutes the decision and order of this Court.

Dated: Mineola, NY_____________________________

May 9, 2007Hon. Leonard B. Austin, J.S.C.