Opinion
May 3, 1957
Smith Rafsky for petitioner.
Harold W. Cohn, special guardian.
This is a proceeding to approve the settlement of an action instituted for the wrongful death of an unmarried minor and for a determination of the rights of the father and mother to the net proceeds thereof in accordance with section 133 of the Decedent Estate Law, and for other incidental relief.
The petitioner, the mother of the infant, claims that the father is precluded from participating in the settlement since he abandoned the infant decedent and failed to support her for a period of more than 10 years prior to her death. By paragraph (c) of subdivision 4 of section 133 of the Decedent Estate Law, a parent who has neglected or refused to provide for an infant child or abandoned such child is not entitled to share in the damages ( Matter of Musczak, 196 Misc. 364; Matter of Pridell, 206 Misc. 316).
After trial and on all the evidence, the court is satisfied that the father abandoned the infant decedent, completely neglected her during her lifetime, was indifferent to her welfare, and failed to support her. The court finds that the father's conduct constituted abandonment and neglect within the concept of the statute so as to deprive him of any part of the damages.
The settlement is approved, the father is denied participation in the recovery, and the petitioner mother is entitled to the entire net proceeds. All other items of relief prayed for are granted. The fees allowed to the attorneys are for all services including the preparation and filing of the decree and distribution thereunder. Settle decree on notice.