Opinion
Index No. EF2019-263844
10-20-2022
David M., as Parent and Natural Guardian of MRM, Plaintiff, v. DM, Defendant.
Anderson, Moschetti & Taffany, PLLC Attorneys For Plaintiff, David J. Taffany, Esq., of counsel
Unpublished Opinion
Anderson, Moschetti & Taffany, PLLC Attorneys For Plaintiff, David J. Taffany, Esq., of counsel
Henry F. Zwack, Acting Supreme Court Justice
In this personal injury action, and following an October 21, 2021 Infant Compromise Order - which resolved and settled all claims for personal injuries sustained by the Infant arising out of a dog bite incident that occurred in February 2019 - the Infant's parent now petitions the Court for an Order authorizing him to withdraw $7,763.00 from the settlement funds to pay for the Infant's tuition a private Catholic school.
For the reasons that follow the Court denies Petition in its entirety.
As background, on February 1, 2019 the Infant, then age 10 months, sustained a dog bite injury, including bites to her right forehead and eyebrow, and now has two permanent facial scars as a result of the dog bite. The Infant's claim was settled before trial, with the balance of the settlement ($102,849.14) paid to the Infant's parent "to be held for the sole use and benefit of said infant, jointly with an officer of Pioneer Bank, Troy, New York... subject to the Order of this Court... (and paid over to the Infant) without further Court Order when the infant reaches the age of 18 years."
Now, the Infant's parent asks the Court to authorize the payment to him of $7,763.00 from the settlement funds so that he may pay his daughter's first year tuition for full day pre-school at a private Catholic school. He also tells the Court that he does "not wish to send her to public school... (and wishes) to send her to a private Catholic school that will give her a good base education while teaching her religion as well."
To be clear, the Court takes no issue with the petitioner's wish to send his child to a private religious school, and certainly credits his goal of advancing her best interests.
This said, the Court is mindful that an infant's settlement funds "belong to the child alone....awarded to compensate for (her) pain, (her) suffering and (her) incapacity... (and are not a substitute) for the necessities of life for which parents are responsible, absent specific proof of financial distress... (and a parent's) duty should not be shifted to the Infant" (Joyner -Pack v State of New York, 30 Misc.3d 903, 9135 [Ct Cl, 2012], quotations and citations omitted). Further, any application for approval of an expenditure of an infant's settlement funds must comply with Uniform Rule 202.67(f) - which must include "a statement that the family of the infant is financially unable to afford the proposed expenditures."
However viewed, the record simply does not support the petitioner's request to shift the cost of pre-school to the Infant, however well intended the private religious education maybe. Particularly absent is any plan for the continuing costs of the private education post the proposed pre-school, or a statement of net worth or admissible proof setting out the petitioner's inability to meet his parental obligations.
Lastly, given the nature of the injuries sustained by the Infant, including facial scarring, in the Court's view the Infant's settlement funds are better preserved and should remain intact until she attains majority, rather than be expended by a likely series of continuing requests to spend her moneys for the necessities of life (Serrant v Mossi, 40 Misc.3d 1224(A) [Sup Ct, Bronx County 2013]) - here defined by the petitioner as a private school education .
Accordingly, it is hereby
ORDERED, that the petition for approval to allow a withdrawal of $7,763.00 from the Infant's settlement funds is denied in its entirety; and it is further
ORDERED, that any subsequent petition for approval to allow a withdrawal from the Infant's settlement funds must include a copy of this Decision and Order.
This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court on NYSCEF, which shall constitute filing, entry and Notice of Entry.
Papers Considered, as filed with NYSCEF:
1. Documents No.19 through #21.