Matter of Hill
Annotate this CaseDecided on June 13, 2007
Sur Ct, Nassau County
In the Matter of the Application of Tanya Wright, as Administratrix of the Goods, Chattels and Credits which were of Vicki Hill, Deceased.
325581
Robert A. Brady, Esq.
31 South Bayles Avenue
Port Washington, NY 11050
(Guardian Ad Litem)
Larry Wallace, Esq.
Wallace & Associates, P.C.
100 Park Avenue, 16th Floor
New York, NY 10017
(Attorney for Petitioner)
Salvatore J. Rico, Esq.
District Tax Attorney
NYS Department of Taxation and Finance
TTTB-Estate Tax Audit
W.A. Harriman Campus
Albany, NY 12227
(Attorney for Commissioner of the New York State Department of Taxation and Finance)
John B. Riordan, J.
In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent, Vicki Hill, was, at the time of her death on January 8, 2001, a 43 year old unmarried mother of two then-infant children, Tanya Wright (DOB July 16, 1984) and Scott Wright (DOB October 9, 1990). At the time of her death, the decedent was unemployed and totally disabled. Limited letters of administration were issued to Tanya Wright, the daughter of the decedent. It is alleged that decedent died as a result of negligent medical care and treatment. Decedent suffered from sarcoidosis and was scheduled to have a bilateral lung transplant. While undergoing a cardiopulmonary stress test, decedent suffered a heart attack and attempts to resuscitate her were unsuccessful. An action was brought against Columbia Presbyterian Hospital and the treating physician alleging medical malpractice.
After discovery, negotiations were entered into with defendant's representatives resulting in a final offer in the sum of $350,000. Petitioner has agreed to accept the settlement offer as this appears to be the largest amount that can be obtained without encountering the uncertainties of further litigation and in view of decedent's limited life expectancy and earning capacity. The petitioner proposes to allocate the entire sum of the settlement proceeds to the cause of action for wrongful death as the decedent never regained consciousness following the alleged malpractice of the defendants (Cummins v County of Onondaga, 84 NY 322 [1994]; Zurita v McGinnis, 7 AD3d 618 [2d Dept 2004]). The guardian ad litem appointed to represent the interests of the infant distributee has filed his report wherein he agrees that the settlement is fair and reasonable.
Accordingly, the compromise in the sum of $350,000 is approved as is allocation of the proceeds entirely to wrongful death and none to conscious pain and suffering. Attorney's fees in the sum of $100,000 are approved, inclusive of disbursements of $4,140.98. The court approves a fee for the guardian ad litem in the sum of $3,000, leaving a net of $247,000 for distribution.
The balance of the wrongful death proceeds, $247,000, shall be paid to the decedent's children, Scott, who was 10 years of age at the time of decedent's death, and Tanya, who was 16 years of age at the time of decedent's death. Wrongful death proceeds are usually distributed to the decedent's dependent distributees pursuant to the formula established in Matter of Kaiser (198 Misc 582 [Sur Ct Kings County, 1950]). Petitioner requests that the court in the exercise of its equitable powers modify the Kaiser apportionment as to provide for an equal distribution. The guardian ad litem opposes the request stating that there is no explanation offered for the deviation from the formula.
The Kaiser formula is not mandated by statute, as the statute does not set forth any [*2]particular formula (see EPTL 5-4.3[a]; 5-4.4[c][1]). Rather, the damages awarded are as the trier of fact deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought (EPTL 5-4.3[a]). Here, the petition shows that decedent, who suffered from sarcoidosis, had a limited life expectancy. Decedent was scheduled for a bilateral lung transplant, an extreme measure for patients with lung disease. Current survival rates are as high as 80% at one year and 60% at four years (see Verimed Healthcare Network; American Journal of Respiratory and Critical Care Medicine [March 2006]). Overall, the five-year patient survival rate is only 45% (Merck Manual Medical Library). While it appears that the decedent's children did not suffer any economic injury by reason of decedent's death, the loss of care, love and guidance that a mother provides for her children are proper elements of pecuniary damages in a wrongful death action (Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 139 [4th Dept, 1980]; 1B Pattern Jury Instructions, 2:320.5 [3rd ed]) . Under the circumstances in this case, the court is of the opinion that the loss of their mother is suffered equally by each child and therefore finds petitioner's request to modify the Kaiser formula as to provide for an equal distribution of wrongful death proceeds between decedent's two children to be fair and reasonable (cf. Matter of Acquafredda, 189 AD2d 504, 512 [2d Dept 1993]).
The share of the infant child shall be paid to a guardian of his property who has been or will be appointed by this court or another court of competent jurisdiction.
The foregoing guardian ad litem fee shall be paid within 30 days of the date of the decree to be entered herein.
Settle decree.
Dated: June 13, 2007
John B. Riordan
Judge of the
Surrogate's Court
The appearance of counsel is as follows:
Robert A. Brady, Esq.
31 South Bayles Avenue
Port Washington, NY 11050
(Guardian Ad Litem)
Larry Wallace, Esq.
Wallace & Associates, P.C.
100 Park Avenue, 16th Floor
New York, NY 10017
(Attorney for Petitioner)
Salvatore J. Rico, Esq.
District Tax Attorney
NYS Department of Taxation and Finance
[*3]
TTTB-Estate Tax Audit
W.A. Harriman Campus
Albany, NY 12227
(Attorney for Commissioner of the New York State Department of Taxation and
Finance)
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