Opinion
514564/17
05-07-2018
LI LI, as Administrator FOR the ESTATE OF HOU JUN LI, Plaintiff, v. SOURCE CONSTRUCTION INC. and Wilian O Criollo Moscoso, Defendants.
Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff Li Li, as Administrator of the Estate of Hou Jun Li, deceased (hereinafter plaintiff or Li Li) on the notice of motion, filed on April 17, 2018, under motion sequence number one, for an order pursuant to Estates Powers and Trust Law § 5–4.6 approving a compromise of the causes of action for the personal injuries and wrongful death of the decedent, Hon Jun Li.
Proposed Order Approving Settlement
Affirmation in Support
Exhibits A to I
The application is unopposed.
Motion Papers
Plaintiff's motion papers consist of the proposed settlement order, an affirmation of counsel and nine annexed exhibits labeled A through N. Exhibit A is the police accident report dated April 10, 2017. Exhibit B is the Prehospital Care Summary Report. Exhibit C is the Letters of Administration issued to Li Li dated June 28, 2017. Exhibit D is a copy of the attorney retainer agreement and retainer statement. Exhibit E is copy of the summons and complaint filed on July 28, 2017. Exhibit F is the Post Mediation Agreement dated February 1, 2018. Exhibit G is a letter from the New York City Human Resource Administration dated March 16, 2018. Exhibit H is a letter from Utica National Insurance Group dated March 15, 2018. Exhibit I is purported to be the Li Disbursement Rider.
BACKGROUND
On April 10, 2017, Hon Jun Li, a pedestrian, was struck and killed in a parking lot by a commercial vehicle operated by defendant Wilian O Criollo Moscoso (hereinafter Moscoso) and owned by defendant Source Construction, Inc. (hereinafter Source).
Plaintiff Li Li, as Administrator for the Estate of Hou Jun Li commenced an action for wrongful death and personal injury. The parties participated in mediation and agreed to a settlement for the sum of Nine Hundred Thousand dollars ($900,000.00) to be paid by the defendants and/or their representatives.
The instant application by plaintiff is to compromise the causes of action for personal injury and wrongful death pursuant to Estates, Powers, and Trust Law section 5—4.6 (hereinafter EPTL § 5—4.6 ).
LAW AND APPLICATION
Estates, Power, and Trusts Law § 5—4.6 Application to compromise action states as follows:
(a) Within sixty days of the application of an administrator appointed under 5—4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court shall, after inquiry into the merits of the action and the amount of damages proposed as a compromise either disapprove the application or approve in writing a compromise for such amount as it shall determine to be adequate including approval of attorneys fees and other payable expenses as set forth below, and shall order the defendant to pay all sums payable under the order of compromise, within the time frames set forth in section five thousand three-a of the civil practice law and rules, to the attorney for the administrator or personal representative for placement in an interest bearing escrow account for the benefit of the distributees.
The Uniform Rules of the Surrogate's Court § 207.38 specifically pertains to the compromises of wrongful death claims and provides in pertinent part as follows:
(a) Upon any application for leave to compromise a claim for wrongful death or personal injuries, or both, the petition and the supporting affidavits shall set forth the time, place and manner in which the decedent sustained the injuries, and a complete statement of all such facts as would justify the granting of the application. If the cause of action did not arise under the laws of the State of New York, the laws of the jurisdiction under which said cause of action arose must be established to the satisfaction of the court.
(b) The petition also shall show the following:(2) the names, addresses, dates of birth and ages of all the persons entitled to take or share in the proceeds of the settlement or judgment, as provided by EPTL 5–4.4, or by the applicable law of the jurisdiction under which the claim arose, and a statement whether or not there are any children born out of wedlock.
The instant application as discussed previously does not include a petition. The affirmation of plaintiff's counsel fails to include specific information regarding the names, addresses, dates of birth and ages of all persons entitled to settlement proceeds. Furthermore, the affirmation is devoid of the statement regarding the existence of children born out of wedlock as required in the aforementioned regulation. This application fails to comport with the requirements of Uniform Rules of the Surrogate § 207.38(b)(2). In light of these deficiencies and for the sake of judicial economy, the Court ends its analysis here.
The application is denied without prejudice. Counsel may refer to the Wrongful Death Compromise Settlement Proceeding checklist available on the New York State Unified Court System's website at www.nycourts.gov/forms/surrogates/wrongfuldeath.
The foregoing constitutes the decision and order of this Court.