James v West Sterling Realty, LLC.

[*1] James v West Sterling Realty, LLC. 2018 NY Slip Op 50646(U) Decided on May 8, 2018 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2018
Supreme Court, Kings County

Eric M. James, an Incapacitated Person, by his Legal Guardian, SABRINA KNIGHT, Plaintiff,

against

West Sterling Realty, LLC., DIRA REALTY, LLC. and MIDTOWN ELEVATOR CO., INC., Defendants.



512570/15



Attorney for Plaintiff
Terrence James Cortelli, Esq.
Stolzenberg Cortelli LLP
305 Old Tarrytown Road
White Plains, New York 10603
(914) 361-4888

Attorneys for Defendants
Caitlin Eileen McPhillips, Esq.
Wood, Smith, Henning & Berman
685 3rd Avenue
New York, NY 10017
(212) 999-7111

Michael H. Gottlieb, Esq.
Gottlieb, Seigel, & Schwartz, LLP
207 East 94th Street Mezzanine Level New York, NY 10128
646-449-8141
Francois A. Rivera, J.

By the instant application electronically filed on April 3, 2018, Sabrina Knight, the guardian of the person and property of Eric M. James, an incapacitated person, seeks an order pursuant to CPLR 1207 and 1208 approving a compromise of settlement of the plaintiff's claims against West Sterling Realty, LLC., Dira Realty, LLC. and Midtown Elevator Co., Inc.

The application is unopposed.

BACKGROUND

On October 15, 2015, Sabrina Knight commenced an action for damages for personal injuries sustained by Eric M. James, by filing a summons and verified complaint with the Kings County Clerk's office. By joint verified answer filed on November 12, 2015, defendants West Sterling Realty, LLC. and Dira Realty, LLC joined issue. By verified answer with cross-claim filed on November 19, 2015, defendant Midtown Elevator Co., Inc. joined issue.

MOTION PAPERS

Sabrina Knight's application papers consist of a proposed compromise order, an affirmation of counsel, an affidavit of Sabrina Knight and three annexed exhibits labeled A through C. Exhibit A is an amended order and judgment issued by Justice Lawrence Knipel dated September 12, 2017 under index number 100064/2017. Exhibit B is described as a document relating to a lien asserted by United HealthCare Community Plan for medical treatment provided to Eric M. James. Exhibit C is described as a document relating to a lien asserted by Medicare for medical treatment provided to Eric M. James.

LAW AND APPLICATION

CPLR Rule 1207 pertain to settlement of actions or claims of an infant or incapacitated person and provides in pertinent part as follows:

Rule 1207 Settlement of action or claim by infant, judicially declared incompetent or conservatee, by whom motion made; special proceeding; notice; order of settlement

Upon motion of a guardian of the property or guardian ad litem of an infant or, if there is no such guardian, then of a parent having legal custody of an infant, or if there is no such parent, by another person having legal custody, or if the infant is married, by an adult spouse residing with the infant, or of the committee of the property of a person judicially declared to be incompetent, or of the conservator of the property of a conservatee, the court may order settlement of any action commenced by or on behalf of the infant, incompetent or conservatee. If no action has been commenced, a special proceeding may be commenced upon petition of such a representative for settlement of any claim by the infant, incompetent or conservatee in any court where an action for the amount of the proposed settlement could have been commenced. Unless otherwise provided by rule of the chief administrator of the courts, if no motion term is being held and there is no justice of the supreme court available in a county where the action or an [*2]action on the claim is triable, such a motion may be made, or special proceeding may be commenced, in a county court and the county judge shall act with the same power as a justice of the supreme court even though the amount of the settlement may exceed the jurisdictional limits of the county court. Notice of the motion or petition shall be given as directed by the court. An order on such a motion shall have the effect of a judgment. Such order, or the judgment in a special proceeding, shall be entered without costs and shall approve the fee for the infant's, incompetent's or conservatee's attorney, if any.

CPLR 1208 pertains to the settlement procedures for such matters and provides as follows:

Rule 1208. Settlement procedure; papers; representation(a) Affidavit of infant's or incompetent's representative. An affidavit of the infant's or incompetent's representative shall be included in the supporting papers and shall state:1. his name, residence and relationship to the infant or incompetent;2. the name, age and residence of the infant or incompetent;3. the circumstances giving rise to the action or claim;4. the nature and extent of the damages sustained by the infant or incompetent, and if the action or claim is for damages for personal injuries to the infant or incompetent, the name of each physician who attended or treated the infant or incompetent or who was consulted, the medical expenses, the period of disability, the amount of wages lost, and the present physical condition of the infant or incompetent;5. the terms and proposed distribution of the settlement and his approval of both;6. the facts surrounding any other motion or petition for settlement of the same claim, of an action to recover on the same claim or of the same action;7. whether reimbursement for medical or other expenses has been received from any source; and8. whether the infant's or incompetent's representative or any member of the infant's or incompetent's family has made a claim for damages alleged to have been suffered as a result of the same occurrence giving rise to the infant's or incompetent's claim and, if so, the amount paid or to be paid in settlement of such claim or if such claim has not been settled the reasons therefor.(b) Affidavit of attorney. If the infant or incompetent or his representative is represented by an attorney, an affidavit of the attorney shall be included in the supporting papers and shall state:1. his reasons for recommending the settlement;2. that directly or indirectly he has neither become concerned in the settlement at the instance of a party or person opposing, or with interests adverse to, the infant or incompetent nor received nor will receive any compensation from such party, and whether or not he has represented or now represents any other person asserting a claim arising from the same occurrence; and3. the services rendered by him.(c) Medical or hospital report. If the action or claim is for damages for personal injuries to the infant or incompetent, one or more medical or hospital reports, which need not be [*3]verified, shall be included in the supporting papers.(d) Appearance before court. On the hearing, the moving party or petitioner, the infant or incompetent, and his attorney shall attend before the court unless attendance is excused for good cause.(e) Representation. No attorney having or representing any interest conflicting with that of an infant or incompetent may represent the infant or incompetent.(f) Preparation of papers by attorney for adverse party. If the infant or incompetent is not represented by an attorney the papers may be prepared by the attorney for an adverse party or person and shall state that fact.

By amended order and judgment issued by Justice Lawrence Knipel on September 12, 2017, annexed as exhibit A, Sabrina Knight was appointed guardian of the person and property of Eric M. James. By that order Justice Knipel directed Sabrina Knight, inter alia, to set up a Special Needs Trust on behalf of Eric M. James and to file a copy of the trust with the clerk of the Court within twenty days.

The application of Sabrina Knight on behalf of Eric M. James complies with the procedural requirements of CPLR 1207 and 1208. Furthermore, the proposed settlement amount of $100,000.00 and the amount of $33,778.17 for the attorney's disbursement and fees are both fair and reasonable.

Despite the reasonableness of the proposed compromise order, Sabrina Knight has not established by the instant application that she has created a supplemental needs trust agreement for the benefit of Eric M. James as directed by Justice Lawrence Knipel's order dated September 12, 2017. Although, Justice Knipel's order was issued under a different index number and pertained to a settlement offer for a different personal injury action, the direction to set up a supplemental needs trust exist for the benefit of Eric M. James.

It would be the Court's intention to place the proceeds intended for Eric M. James by the instant proposed compromise order in the Supplemental Needs Trust, assuming that such a trust has already been created. Accordingly, the instant application is adjourned to September 7, 2018 as a control date. Sabrina Knight may advance the adjourned date to any date the Court is in session by submitting a copy of the Supplemental Needs Trust Agreement to the clerk of Part 52 of this Court prior to September 7, 2018. If Sabrina Knight does not provide a copy of the Supplemental Needs Trust Agreement to the clerk of Part 52 of this Court on or before September 7, 2018, the application will be denied.

The foregoing constitutes the decision and order of this Court.

Enter:
J.S.C.