Opinion
File 2016-389779/A B C D
09-22-2021
In the Matter of the Application of Keith Staszak, as Administrator of the Estate of CHRISTINE STASZAK, Deceased, For Leave to Allocate and Distribute the Proceeds of an Action for the Wrongful Death of said Decedent, and to Judicially Settle the Account. Dec. No. 38697
Elizabeth Montesano, Esq. Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. Attorneys for Petitioner Laura Adler-Greene, Esq. Guardian Ad Litem Law Offices of Andrew M. Cohen, P.C.
Unpublished Opinion
Elizabeth Montesano, Esq. Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. Attorneys for Petitioner
Laura Adler-Greene, Esq. Guardian Ad Litem Law Offices of Andrew M. Cohen, P.C.
PRESENT: HON. MARGARET C. REILLY
DECISION
HON. MARGARET C. REILLY JUDGE
The following papers were considered in the preparation of this decision:
Petition with Exhibits.......................................... 1
Waiver and Consent........................................... 2
Attorney's Affirmation with Exhibits.............................. 3
Supplemental Attorney's Affirmation with Exhibits.................. 4
Reports of Guardian Ad Litem................................... 5
Affirmations of Services of Guardian Ad Litem..................... 6
Summary Account............................................ 7
In this proceeding for the allocation and distribution of the net proceeds of the causes of action for conscious pain and suffering and wrongful death of the decedent, the adequacy of the settlement in the total sum of $3,300,000.00 was approved by order of the Supreme Court, Nassau County, Hon. R. Bruce Cozzens, Jr., dated March 6, 2020, which also approved attorneys' fees of $477,572.78 and disbursements of $24,272.16, leaving the net sum of $2,798,155.06 to be distributed pursuant to the order of this court (EPTL 5-4.6).
The decedent died intestate, a resident of Nassau County, on June 15, 2015, survived by her husband, who is the administrator of the decedent's estate, and by two children, who were both minors at the time of the decedent's death. The decedent's older child has since attained majority. A guardian ad litem was appointed to represent the interest of the decedent's younger child, who is still a minor. Both of the decedent's children are on the autism spectrum and the petitioner was appointed as temporary Article 81 guardian for property management for the children by orders of the Supreme Court, Nassau County, Hon. Julianne T. Capetola, dated April 13, 2020. Letters of limited administration issued to the petitioner on June 28, 2016. A waiver and consent has been filed by the New York State Department of Taxation and Finance. There are no other parties whose consent is necessary or who are entitled to notice of this proceeding (EPTL 5-4.4 [a]; 22 NYCRR 207.38 [c]).
The decedent sustained injuries and ultimately death as a result of the alleged failure to diagnose and treat the decedent's heart condition. Petitioner retained counsel who commenced a medical malpractice action in Supreme Court, Nassau County, which was settled for the total sum of $3,300,000.00.
The decedent's funeral expenses were paid in full by the petitioner and no reimbursement is being sought. The petitioner waives his right to statutory commissions. There are no known liens against the estate of the decedent.
Petitioner requests that the net proceeds of the settlement be allocated $500,000.00 (15.1515%) to the cause of action for conscious pain and suffering, to be distributed pursuant to EPTL 4-1.1. Petitioner requests that $2,800,000.00 (84.8485%) of the net settlement proceeds be allocated to the cause of action for wrongful death.
The net recovery in a wrongful death action is distributed to the decedent's distributees in accordance with their anticipated years of support from the decedent and the decedent's surviving spouse and children share in the net recovery in proportion to the pecuniary loss suffered by each (Matter of Kaiser, 198 Misc. 582 [Sur Ct, Kings County 1950]). The allocation of the portion of the settlement attributable to wrongful death in accordance with the formula established in Matter of Kaiser results in the following distribution: 63.735% to the decedent's spouse, 15.589% to the decedent's older child and 20.676% to the decedent's younger child. However, the petitioner notes that both of the children are on the autism spectrum and, as such, the petitioner requests that the court permit a deviation from the Kaiser formula to reduce the petitioner's share to 58.648% and increase the older child's share to 20.676%, so that both children receive equal distributions of the wrongful death proceeds.
The guardian ad litem appointed to represent the interest of the decedent's younger child consents to the allocation of the recovery 15.1515% to the cause of action for conscious pain and suffering and 84.8485% to the cause of action for wrongful death. As such, of the total net proceeds of the settlement, to wit: $2,798,155.06, the net proceeds attributable to conscious pain and suffering is $423,962.89 and the net proceeds attributable to wrongful death is $2,374,192.17. The guardian ad litem agrees that the petitioner's Kaiser calculations are accurate, however, she agrees that the net recovery attributable to wrongful death should be allocated among the decedent's distributees (decedent's husband and two minor children) with the proposed deviation from the Kaiser formula.
The court finds that the requested departure from the application of the Kaiser formula in the instant proceeding is appropriate and equitable (see, Matter of Acquafredda [Czygier], 189 A.D.2d 504 [2d Dept 1993]; Matter of Delmoro (48 Misc.3d 628 [Sur Ct, Westchester County 2015]).
Accordingly, the surviving spouse and children will share in the net recovery of $2,374,192.17 attributable to wrongful death as follows: the surviving spouse is therefore entitled to 58.648% thereof, or the sum of $1,392,416.23, and the decedent's children are each entitled to 20.676% thereof, or the sum of $490,887.97 each.
Additionally, the surviving spouse and children will share in the net recovery of $423,962.89 attributable to conscious pain and suffering in accordance with EPTL 4- 1.1(a)(1). The surviving spouse is therefore entitled to $236,981.45 and the decedent's children are each entitled to the sum of $93,490.72.
The total distributive share to the surviving spouse shall be paid to him in up front funds. The total distributive shares to each of the decedent's children shall be paid to the petitioner as their temporary Article 81 guardian and deposited into guardianship accounts for each of them.
The court must also fix a fee for the services of the guardian ad litem. "The Surrogate's Court bears the ultimate responsibility for deciding what constitutes a reasonable attorney's fee, and the evaluation of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the court" (Matter of Goliger, 58 A.D.3d 732, 732 [2d Dept 2008] [citations omitted]; accord Matter of Freeman, 34 N.Y.2d 1, 9 [1974]; Matter of Potts, 123 Misc. 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]). In determining what constitutes a reasonable attorney's fee, the court may consider factors such as "the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability, and reputation, the amount involved, the customary fee charged for such services, and the results obtained" (Matter of Szkambara, 53 A.D.3d 502, 502-503 [2d Dept 2008] [citations omitted]; see Matter of Freeman, 34 N.Y.2d 1 [1974]). These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Morris, 57 A.D.3d 674 [2d Dept 2008]).
The guardian ad litem affirms that she expended a total of 13.74 hours in the performance of her duties as guardian ad litem. The court fixes the fee of the guardian ad litem in the sum of $4,800.00. The fee of the guardian ad litem shall be paid from the petitioner's distributive share.
The petitioner is not required to file a bond herein. The account of the petitioner is judicially settled. The restrictions on the letters of limited administration previously issued to the petitioner shall be removed to allow the petitioner to effectuate the settlement.
The decree submitted shall be reviewed.
The remainder of the relief set forth in the petition is DENIED.