Opinion
XXX.
Decided July 22, 2011.
Reddy, Levy Ziffer, P.C., (Brian A. Cahalane, Esq., of counsel) for Bonnie Gould, Public Administrator of Bronx County, petitioner.
Lorraine S. Miller, Esq., Guardian ad Litem for four infants.
The Public Administrator seeks to judicially account for the proceeds of causes of action settled after trial in the Supreme Court, Bronx County (Friedlander, J.) and a no-fault death benefit.
The decedent died intestate on December 10, 2003 when he was struck by a school bus while a pedestrian. The decedent's distributees are a spouse and six children, all of whom were under the age of 21 on the date of the decedent's death, and four of whom remain infants. The adult distributees, the New York City Department of Social Services, and alleged medical care providers were served with process and defaulted. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, and the lack of any unsatisfied debts or claims presented herein, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action.
The guardian ad litem for the four children who are still infants objects to the proposed distribution of the settlement proceeds which was calculated using an 18-year period of dependency instead of the customary 21 years. The petitioner replies that her calculation is appropriate given that the youngest three infants reside in Ecuador and it is unlikely that the law of their domicile obligates parents to support their children until the age of 21. The guardian ad litem counters that one of her wards is already residing with the petitioner in Bronx County and there are plans for her other three wards to come to this country in the future.
Although the Kaiser formula (Matter of Kaiser, 198 Misc 582) may be modified in an appropriate case (see Matter of Duffy, 208 AD2d 1169, lv denied 85 NY2d 802; Matter of Acquafredda, 189 AD2d 504; Matter of Feld, 153 Misc 2d 615; Matter of Singleton, 96 Misc 2d 169), the court concurs with the guardian ad litem that considering all of the circumstances, this is not one of the cases where the court should depart from the customary 21-year dependency standard. Accordingly, the net distributable proceeds are to be paid pursuant to Matter of Kaiser ( 198 Misc at 582), as follows: 33.8519% to the spouse; 6.5185% to Manuel F. G.; 8.8889% to Maria E. G.; 10.5185% each to Jose G. G. and David A. G.; 13.9259% to Luis A. G.; and, 15.7778% to Maria D. G. The infants' shares are to be paid to the duly appointed guardians of their respective property jointly with the Guardian Clerk of this court, subject to the further order of the court. If no one petitions for guardianship of the property of any infant distributee within 60 days from the date of the decree to entered hereon, the Public Administrator is directed to petition for letters of guardianship of the property of such infant.
Settle decree.