2006 New York Code - Application to compromise action



 
  § 5-4.6 Application to compromise action
    (a) Within sixty days of the application of an administrator appointed
  under 5-4.1 or a personal representative to the court in which an action
  for  wrongful act, neglect or default causing the death of a decedent is
  pending, the court shall, after inquiry into the merits  of  the  action
  and the amount of damages proposed as a compromise either disapprove the
  application  or  approve  in  writing a compromise for such amount as it
  shall determine to be adequate including approval of attorneys fees  and
  other payable expenses as set forth below, and shall order the defendant
  to  pay  all sums payable under the order of compromise, within the time
  frames set forth in section five thousand three-a of the civil  practice
  law  and  rules,  to  the  attorney  for  the  administrator or personal
  representative for placement in an interest bearing escrow  account  for
  the  benefit  of  the distributees. The order shall also provide for the
  following:
    (1) Upon collection  of  the  settlement  funds  and  creation  of  an
  interest  bearing  escrow account, the attorney for the administrator or
  personal representative shall pay from the account all due  and  payable
  expenses,  excluding  attorneys  fees,  approved  by  the court, such as
  medical bills, funeral costs and other liens on the estate.
    (2) All attorneys fees approved by the court for  the  prosecution  of
  the  action  for  wrongful  act,  neglect  or  default, inclusive of all
  disbursements, shall be immediately payable from the escrow account upon
  submission to the  trial  court  proof  of  filing  of  a  petition  for
  allocation  and  distribution  in the surrogate's court on behalf of the
  decedent's estate.
    (3) The attorney for the administrator or personal  representative  in
  the  action  for  wrongful  act, neglect or default who receives payment
  under this section shall continue to serve as attorney  for  the  estate
  until the entry of a final decree in the surrogate's court.
    (b)  If  any of the distributees is an infant, incompetent, person who
  is incarcerated or person under disability, the  court  shall  determine
  whether a guardian ad litem is required before any payments are made, in
  which case the court will seek an immediate appointment of a guardian ad
  litem  by the surrogate's court or, if the surrogate's court defers, the
  court shall make such  appointment.  Any  guardian  appointed  for  this
  purpose  shall continue to serve as the guardian ad litem for the person
  requiring same for all other purposes.
    (c) The filing fee in the surrogate's court shall be computed based on
  the amount of the gross estate prior to any  payments  made  under  this
  paragraph.
    (d) The written approval by such court of the compromise is conclusive
  evidence  of  the  adequacy  of  the compromise in any proceeding in the
  surrogate's court for the  final  settlement  of  the  account  of  such
  administrator or personal representative.
    (e)  Nothing  in this section shall be deemed to preclude the attorney
  for the administrator or personal representative  from  petitioning  the
  surrogate's  court  for  approval of a compromise and for allocation and
  distribution thereof.
    (f) No letters of administration shall be issued which will in any way
  serve to abrogate the rights  or  obligations  of  an  administrator  or
  personal  representative or an attorney representing an administrator or
  personal representative under this section.

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