Opinion
3632/B-2007
03-03-2021
ACCOUNTING BY PUBLIC ADMINISTRATOR OF KINGS COUNTY as the Administrator of the Estate of D.W.L, Deceased.
Charles Fiore, Esq., Lewis & Fiore, Esqs., 225 Broadway, Suite 3300, New York, NY 10007 Seth Macarthur, Esq., Trial Counsel to the Public Administrator, Law Offices of Michael S. Lamonsoff, PLLC, 32 Old Slip, New York, NY 10005 Court Appointed Guardian ad Litem, Michael J.S. Pontone, Esq., 532 Union Street, Brooklyn, NY 11215
Charles Fiore, Esq., Lewis & Fiore, Esqs., 225 Broadway, Suite 3300, New York, NY 10007
Seth Macarthur, Esq., Trial Counsel to the Public Administrator, Law Offices of Michael S. Lamonsoff, PLLC, 32 Old Slip, New York, NY 10005
Court Appointed Guardian ad Litem, Michael J.S. Pontone, Esq., 532 Union Street, Brooklyn, NY 11215
Harriet L. Thompson, S.
In this proceeding, the Public Administrator of Kings County (hereinafter the Public Administrator) has requested judicial settlement of his account as administrator of the estate of D.W.L. (hereinafter the decedent).
The record reflects that the decedent died intestate, on February 9, 2007, at the age of 33. His death was the result of carbon monoxide poisoning, allegedly caused by the presence of a faulty indoor generator in a building located at 262 Vanderbilt Avenue in Brooklyn, New York. At the time of his death, the decedent was unmarried. He was also the putative father of three minor children, who were born out of wedlock to two women, "Stacy" and "Carlyn".
In September 2007, the decedent's mother, "Ms. C", petitioned the court for letters of limited administration to pursue a wrongful death action on behalf of the decedent's estate. In her initial petition, Ms. C affirmed that the decedent was survived by three children, to wit—"G", "E" and "H". In October 2008, Ms. C filed an amended petition for letters of temporary administration wherein she affirmed, inter alia, that the decedent had no issue. The Public Administrator was ultimately appointed temporary administrator of the decedent's estate on January 28, 2009.
On February 2, 2009, the Public Administrator entered into a retainer agreement with the Law Office of Michael S. Lamonsoff, PLLC. By the filing of a summons and complaint on February 17, 2009, trial counsel commenced a wrongful death action against the owners and manager of the property where the incident occurred. After commencement of the action, entitled Public Administrator v Jubil Malieckal, M.D., Maharanee Malieckal, ADG Realty Company, LLC, et al. , and bearing Supreme Court, Kings County, Index Number 34518/09, a settlement offer in the principal sum of $150,000.00 was made by the defendants to resolve the wrongful death claim. The Public Administrator opines that its acceptance of this settlement offer was in the best interest of the estate.
The Public Administrator was issued full letters of administration on April 14, 2016. The Public Administrator commenced this proceeding by the filing of a petition on May 26, 2016. An amended petition was filed on June 28, 2016, citing alleged distributees of the decedent, the Attorney General of the State of New York, the New York State Department of Finance, and the New York City Human Resources Administration. In addition, the Public Administrator published for all unknown distributees of the decedent's estate pursuant to SCPA § 307(3).
On September 13, 2017, Michael J.S. Pontone, Esq. was appointed by the former Acting Surrogate, John G. Ingram, as Guardian Ad Litem for the decedent's child, "H", who, at the time, was 15 years old.
In October 2017, verified objections were filed by Pre-Settlement Finance, LLC (hereinafter PSF), claiming that it is an estate lienholder on the basis that it advanced loan monies against the proceeds of the wrongful death action to the decedent's mother, Ms. C.
Thereafter, this matter was set for a kinship hearing before a court attorney-referee. The kinship hearing was conducted on three dates: March 5, 2018, April 29, 2019, and April 30, 2019. The legal issue was paternity. On the initial hearing date, the parties herein--appearing either pro se or by counsel--consented to the appointment of the referee, waived the filing of a written referee's report, and consented to the Court's determination of the issues based on the testimony and documentary evidence adduced at the hearing ( SCPA § 506 [6][c] ).
"In kinship proceedings, claimants have the burden of proving kinship, and must establish that they are decedent's closest surviving blood relatives as defined in EPTL § 4-1.1. This burden is met by a preponderance of evidence. For kinship to be established to the satisfaction of the Court, claimants must [prove] (1) how each is related to decedent, and (2) that no other persons of the same or a nearer degree of relationship survived decedent.... In all cases involving pedigree and the distribution of intestate property, it is first necessary to establish the identity of the common ancestor and from that point to construct the true family tree, to which all claimants must attach themselves to be successful" (Matter of Kuberka, 22 Misc 3d 1104(A) [Sur Ct, Erie County 2008] [internal citations and quotations omitted]). Further, "[w]hen persons of the nearest degree of relationship establish their standing, those more remote are excluded" ( In re Judicial Settlement of Accounts of Mosey , 20 Misc 3d 1120(A) [Sur Ct, Erie County 2008] ; see Matter of Henesey , 3 Misc 2d 660 [Sur Ct, New York County 1956], affd 3 AD2d 834 [1st Dept 1957] ).
Further, as is relevant here, EPTL § 4-1.2 provides, in pertinent part, as follows: "(2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if.... (C) paternity has been established by clear and convincing evidence, which may include, but is not limited to.... (ii) evidence that the father openly and notoriously acknowledged the child as his own...." ( EPTL § 4-1.2 [2][C][ii] ).
It has been long-settled that "[d]eclarations in regard to pedigree, although hearsay, are admitted on the principle that they are the natural effusions of persons who must know the truth and who speak on occasions when their minds stand in an even position without any temptation to exceed or fall short of the truth. The admissibility of such declarations is subject to three conditions: 1. The declarant must be deceased. 2. They must have been made ante litem motam , (i.e., at the time when there was no motive to distort the truth). 3. The declarant must be related either by blood or affinity to the family concerning which he speaks" ( Aalholm v People , 211 NY 406 [1914] ).
In the present case, oral testimony regarding the pedigree of "G", "E" and "H" comprises a significant portion of the evidence adduced by four witnesses, viz., nonparty witnesses, Stacy and Carlyne, and party witnesses, "G" and "E". Stacy testified that the decedent was her childhood boyfriend. Their families previously knew each other, before moving to New York from Trinidad and Tobago. The couple began cohabitating when they were both teenagers. He moved in with her, but they never married. They also had two children together—"G" and "E", who were born in 1996 and 1998, respectively. Stacy stated that the couple's relationship ended due to allegations of domestic violence; and there were orders of protection that required him to stay away from her. Stacy abided by the orders of protection to maintain custody of her children.
Stacy further testified that the decedent spent most of his youth in jail and was often homeless. However, before he died, the decedent apologized to her for his alleged abuse and wanted to marry her. He also wanted to spend more time with "G" and "E". According to Stacy, he also made an effort to put his name on their sons' birth certificates the year before he died but on the date he was supposed to go to Family Court, there was a transit strike and he could not make it to the court. Stacy stated that she had four additional children that were not the decedent's children.
Stacy was aware that the decedent had fathered a third child, "H", whom he brought to her home with him when he went there to pick up "G" and "E" for an outing. She recalled that one of her other children is about the same age as the decedent's son "H". During a family gathering in 2014, at the time of the death of the decedent's grandmother, the decedent's aunt told Stacy that the decedent had a fourth child. However, she purportedly did not give Stacy any details of the matter. Stacy added that she was grateful for the time that the decedent had spent with his sons.
Carlyne testified that she met the decedent in 1998, and he moved in with her shortly thereafter. They lived together from 1998 until approximately 2004. During this period, Carlyne became pregnant by the decedent twice. The first pregnancy ended in a miscarriage in February 2001. The second pregnancy resulted in the birth of the couple's son, "H", who was born in 2002. Carlyne stated that the decedent was not at the hospital when "H" was born because "he was detained at the time." She also testified that the decedent's name was not placed on "H" birth certificate. Carlyne asked the decedent to have his name added to "H" birth certificate, but the decedent refused to do so. She explained: "I don't know if it was as much of a hard refusal or it was just ignoring the whole matter or whatever. I really can't remember but I know I was very upset about it and I just left the documents on top [of the refrigerator for him]."
After the couple ceased cohabitating in 2004, the decedent visited "H" every three months and spent time with "H" during the visits. Carlyne stated that she met the decedent's two older sons, "G" and "E", for the first time during one of those visits--when "H" was four years old. There were also a couple of occasions when the decedent took "H" with him for the night. On one visit, after the decedent and "H" returned from a visit with the decedent's mother, the decedent stated, "my mom said yeah, this is my son." According to Carlyne, the decedent did not make any claim that "H" was not his son.
Taken together, the testimony of Stacy regarding the decedent's acknowledgements to her that "H" is the decedent's son and the testimony of "H" mother, Carlyne, that the decedent informed her that "G" and "E" are his sons, constitutes admissible pedigree evidence under the above criteria enumerated by the Court of Appeals in Aalholm v. People , (211 NY 406, supra ). Indeed, their testimony serves as clear and convincing evidence that the decedent openly and notoriously acknowledged the three children as his own (EPTL Law § 4-1.2 [2][C] ; see In re Estate of Marks , 16 Misc 3d 334 [Sur Ct, Bronx County, 2007] ). As significant, such testimony does not run afoul of CPLR § 4519, which precludes an interested party from being examined as a witness in his own behalf regarding personal transactions or communications between himself and the decedent in certain actions.
As an aside, it is worthy to note that the application of CPLR § 4519 --as a bar to the pedigree exception to the hearsay rule--has been wholly rejected by one court as irrational (see In Estate of Berlin , 91 Misc 2d 666, [Sur Ct, Bronx County 1977] ). The Court reasoned as follows:
"Under the pedigree exception to the hearsay rule in New York State an objectant is permitted to offer clearly self-serving hearsay testimony as to conversations relative to the pedigree of decedent which said [party] had with countless persons who are deceased or unavailable relatives of decedent.... However, when [a party] attempts to testify to similar conversations with the decedent whose estate is at issue the spectre of CPLR § 4519 is raised as an alleged bar based on such conversations being "transactions" with decedent. It is difficult to see any rationale which would justify admitting under the kinship exception to the hearsay rule [a party's] account of conversations with countless deceased persons and then making an exception with reference to a conversation with the decedent whose estate is at issue" ( Estate of Berlin , 91 Misc 2d 666, supra).
Here, upon adopting the foregoing rationale, and weighing the evidence adduced at the hearing, the Court accepts the credible pedigree testimony of "G" concerning his father-son relationship with the decedent; confirming that his parents had cohabitated and were the biological parents of his younger brother, "E"; and recounting that the last time he saw "H" was when he and the decedent's brother went to pick up "H" for a family day. It was "G" 17th birthday that day.
The Court similarly accepts as credible the testimony of "G" and "E" regarding the circumstances surrounding their initial introduction to their younger half-brother "H", whom they met during a brief stop at "H" mother's home with the decedent. This visit occurred while the trio was en-route to the subway following their outing to a nearby museum. The Court finds that "G" and "E" credible testimony bolsters the testimony of Stacy and Carlyne regarding kinship.
Accordingly, based upon the totality of the evidence adduced herein, which includes the transcripts of the kinship hearing held before a court attorney-referee, the proof substantiates and the Court finds that, at the time of his death, the decedent was unmarried and survived by three distributees. The decedent's distributees are his non-marital issue, to wit: "G", "E" and "H" (see EPTL § 5-4.5 ). The decedent's mother, Ms. C, is not a distribute of the decedent's estate (see EPTL § 4-1.1 ).
The proof further establishes that more than three years have elapsed since the death of the decedent, and that none of the parties have knowledge of any additional distributees or claimants other than those established in the record before this Court ( SCPA § 2225 ).
Turning to the objections and claims asserted against the decedent's estate by PSF and the New York City Human Resource's Administration, they seek reimbursement of monies allegedly owed to them by Ms. C, the decedent's mother. For such claim, it should be noted that "[t]he Surrogate's Court is a court of limited subject matter jurisdiction and possesses only those powers conferred upon it by statute [see SCPA § 201 ]. While the jurisdiction of the Surrogate's Court is broad where the controversy relates to the affairs of decedents or the proceeding pertains to the administration of an estate, the Surrogate's Court's limited subject matter jurisdiction does not extend to independent matters involving controversies between living persons" ( Matter of O'Connell , 98 AD3d 673, 674 [2d Dept 2012] ; see Matter of Lainez , 79 AD2d 78 [2d Dept 1981] ). Further, it is well-established that "[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent" (Matter of Pluym , 195 AD 565 [1st Dept 1921] ). Although not relevant to the facts in this proceeding, "the Surrogate's Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate" ( Matter of Lainez , 79 AD2d 78, 80, supra. )
The claims against Ms. C for monies allegedly advanced to her by PSF and the New York City Human Resources Administration, for her personal benefit, do not relate to the affairs of the decedent or to the administration of the decedent's estate. Rather, these claims pertain to independent matters involving controversies between living persons, for which this Court has no jurisdiction (see Matter of O'Connell , 98 AD3d 673, supra ). Accordingly, since this is not the proper forum for the recovery of such personal claims against Ms. C, the objections and claims against the estate for monies allegedly owed by her are hereby dismissed with prejudice.
As to the distribution of the funds received in a wrongful death action, such claims are governed by EPTL § 5—4.4. The statute requires that the monies be distributed to those entitled "in proportion to the pecuniary injuries suffered by them" ( EPTL § 5—4.4[a][1] ). Indeed, the application of this provision must result in an equitable outcome (see Matter of Delmoro , 48 Misc 3d 628, 630 [Sur Ct, Westchester County 2015] ). Thus, "[t]he Surrogate is vested with discretion and with equitable powers as to the proportional allocation of wrongful death proceeds" ( Matter of Acquafredda , 189 AD2d 504, 506 [2d Dept 1993] ).
The Public Administrator requests that the Court distribute the proceeds recovered in the wrongful death action in accordance with the formula enunciated in Matter of Kaiser , (198 Misc. 582 [Sur Ct, Kings County 1950] ). "Under Kaiser , a decedent's spouse (if any) and children under the age of 21 at the time of the decedent's death each receive a share of the wrongful death proceeds. The amount of each share is determined by a fraction in which the denominator is the sum of the number of years of anticipated dependency of the surviving spouse plus the total number of years of anticipated dependency of all children under 21 at the time of the decedent's death. The numerator for each such distributee is the number of that distributee's years of anticipated dependency. The anticipated dependency period for the decedent's spouse is the shorter of either the spouse's own life expectancy or the decedent's life expectancy, as measured by recognized mortality tables. The anticipated dependency period for each child is measured by the number of years from the date of decedent's death until the child reaches the age of 21" (Matter of Delmoro , 48 Misc 3d 628, supra [internal citations omitted]). That said, if Kaiser were applied here, the oldest child, "G", would receive a 25.05% share; the second child, "E", would receive a 32.22% share; and the youngest child, "H", would receive a 42.73% share.
However, the Court is not bound to a strict application of the Kaiser formula ( Matter of Acquafredda , 189 AD2d 504, supra; Matter of Delmoro , 48 Misc 3d 628, supra), and finds that its application in this matter would not result in the most equitable result for the decedent's distributees.
Given the testimony regarding the decedent's struggles with homelessness and criminal history, his inability to provide financial support for his distributees was made abundantly clear. Moreover, notwithstanding his demonstrated affection for his children, it is apparent that the decedent was not a reliable source of financial support for them. By extension, the net pecuniary loss to them is effectively equal. Under these circumstances, and considering the financial conditions of the distributees, who are now young adults, the principles of equity guide this Court to find that the distribution to the decedent's distributees be made in equal shares (see Matter of Maerkle, 44 Misc 2d 617 [Sur Ct, Broome County 1964] [in order to achieve a more even distribution among three children, who were all close to attaining the age of 21, the court awarded funds for their support until the age of 21, and allocated the remaining funds equally among them]; see generally Matter of Feld, 153 Misc 2d 615 [Sur Ct, New York County 1992] [decedent's income, habits, and prior relationship to the distributees, their needs, circumstances and history of receiving benefits and all other evidence showing a disposition on the part of a decedent to provide assistance to a distributee is to be evaluated]).
Accordingly, the net estate, which consists solely of the proceeds from the settlement of the wrongful death action, shall be distributed to the decedent's distributees, pursuant to EPTL §§ 4-1.2(2)(C)(ii), 5-4.4 and 5-4.5 as follows:
| "G" | 1/3 |
| "E" | 1/3 |
| "H" | 1/3 |
The Guardian Ad Litem has submitted his amended report (recommending that the accounting be approved and that the above-listed persons be determined to be the decedent's distributees) and his supporting affirmation of legal services requesting compensation for the services rendered herein. After a careful review of the papers submitted in support of the request for counsel fees, as well as the factors to be considered in the fixation of such fees ( Matter of Morris , 57 AD3d 674 [2d Dept 2008] ), the Court has fixed and determined the fair and reasonable value of the legal services of the guardian ad litem in the sum of $ 1,800.00.
Counsel for the Public Administrator has submitted an affirmation of legal services requesting compensation for the services rendered herein. After a careful review of the papers submitted in support of the request for counsel fees, and in consideration of the Administrative Board Guidelines of the Offices of the Public Administrator pursuant to SCPA § 1128 (hereinafter the Guidelines) and SCPA § 1108(2) (c), to be considered in the fixation of such fees, the Court has fixed and determined the fair and reasonable value of the legal services of the counsel for the Public Administrator in the sum of $6,182.00.
Lastly, the Law Offices of Michael S. Lamonsoff, which served as trial counsel retained by the Public Administrator to represent the decedent's estate in the wrongful death action, has submitted an affirmation of legal services requesting compensation for legal services in the amount of $48, 671.00 and disbursements in the amount of $ 3,984.45. After a careful review of trial counsel's affirmation of legal services and papers submitted in support of the request for legal fees and in consideration of the Guidelines to be considered in the fixation of such fees, the Court has fixed and determined the fair and reasonable value of the legal services of The Law Office of Michael S. Lamonsoff, PLLC in the sum $36,503.88, and disbursements in the sum of $3,984.45.
Settle decree.