Opinion
No. 13112/96.
2010-09-2
Van GILCHRIST, an infant by his mother and natural guardian, Patricia Gilchrist, Plaintiff, v. The BROOKDALE HOSPITAL MEDICAL CENTER, Defendant.
Gideon Orion Oliver, Esq., New York.
FRANCOIS A. RIVERA, J.
By verified petition filed on August 16, 2010, Patricia Gilchrist (hereinafter the petitioner) seeks an order permitting a partial withdrawal from the trust of her son, Van Gilchrist (hereinafter the infant) to pay the cost of repairs for her brother's automobile and for attorney's fees incurred in connection with the instant application.
PETITION PAPERS
The instant verified petition contains an affidavit of the petitioner and six annexed exhibits. The first is labeled exhibit A and contains an affirmation of petitioner's counsel. The second is labeled A–1 and contains a proposed order for partial withdrawal of her son's funds. The third is labeled A–2 and contains another proposed order for partial withdrawal of the infant's funds. The fourth is labeled B and contains an HSBC bank statement dated June 19, 2010, showing the balance of funds held by the petitioner on behalf of the infant. The fifth is labeled exhibit C and purports to be an estimate for the repair of a 2001 Honda Odyssey. The sixth and final exhibit is labeled D and appears to be a physician's report on the competency of the infant.
APPLICABLE LAW
CPLR § 1211(a) provides as follows:
Allowance for infant's support. (a) Petition to supreme court, county court or surrogate's court; contents. A petition to the supreme court, county court or the surrogate's court for the application of an infant's property or a portion thereof to the infant's support, maintenance or education shall set forth in detail:
1.the amount and nature of the infant's property, where it is situated and how invested, his income from such property or any other source and any claim against the infant; 2. whether or not the infant's parents are living and, if either of them is living, all circumstances relative to their ability to support the infant, and, if neither of them is living, the names of other persons legally obligated to support the infant and the circumstances relative to their ability to support the infant; and 3. the terms of any previous order made by any court within or without the state for similar relief and the disposition made of any property pursuant thereto.
The matters that should be considered when applications for withdrawals of infant funds are requested are fully set forth in DeMarco v. Seamen, 157 Misc. 390, [NY Sup.1934] ). Justice Cuff set forth the underlying principles which courts have since applied when faced with like situations: It is the duty of the court to protect the child's fund until he reaches his majority; it is the duty of the parent to support the child until that event; it is the duty of the petitioner to submit detailed information which would justify the court's authorization to deplete the infant's funds for extraordinary expenses beneficial to the child and not affordable to the parents, and such approved expenditures should be disbursed directly to the creditor (Matter of Marmol, 168 Misc.2d 845, [NY Sup.1996] citing DeMarco v. Seamen, supra ). The detailed information required to be joined with the petition for withdrawal of the infant's fund, as outlined in DeMarco, supra, was emphasized and enumerated in Matter of Stackpole, 9 Misc.2d 922 [Mun Ct, Queens County 1957] ) and codified in Uniform Rules for Trial Courts 22 NYCRR 202.67(f)
Among the items to be included in the application under 22 NYCRR 202.67(f) are:
(1) a full explanation for the purpose of the withdrawal;
(2) a sworn statement of the reasonable cost of the proposed expenditure; (3) the infant's age; (4) the date and amounts of the infant's and parents' recovery; (5) the balance from such recovery; (6) the nature of the infant's injuries and present condition; (7) a statement that the family of the infant is financially unable to afford the proposed expenditures;
(9) any other facts material to the application.
Subdivision (g) of 202.67 provides “No authorization will be granted to withdraw such funds, except for unusual circumstances, where the parents are financially able to support the infant and to provide for the infant's necessaries, treatment and education.” Two separate standards for approval of withdrawal of funds are imposed under 202.67(g). Withdrawals for “unusual circumstances” those necessitated by the child's disability—need not be predicated upon the parents' inability to pay for them while those for “necessaries, treatment and education” must be supported by clear proof that the parents are too poor to provide them ( Matter of Marmol, supra ). An application for either expenditure must comply with 202.67(f) in that sufficient facts must be submitted to enable the court to determine, without conjecturing, that support of the child is not within the financial means of the parents ( Id.) This is a departure from the DeMarco v. Seaman rule, which held that the child's personal injury recovery was so inviolable that only extraordinary expenses justified withdrawals and that social agencies were to provide for a child's support where parents financially could not ( Id.).
Article 81 of Mental Hygiene Law sets forth the criteria and procedure for the appointment of guardian to manage the property and personal needs of a person who needs help with those activities.
DISCUSSION
Petitioner avers in her affidavit that Van turned 18 years old on December 21, 2008, that they reside in Waycross, Georgia, and that she recently commenced a proceeding in Georgia's court system to become Van's guardian. She contends that she and her son often depend on her brother's 2001 Honda Odyssey for transport and that it will cost approximately $7,432.00 to fix its transmission and related mechanical problems. The petition did not include a copy of the infant compromise order in the instant matter.
This presents an immediate problem because the infant compromise order must be examined to determine if the instant petition conflicts or complies with its directions. However, the court has examined the Kings County Clerk's file and located the relevant orders (original, amended and supplemental infant's compromise orders) applying its authority to take judicial notice of its own records (Khatibi v. Weill, 8 AD3d 485 [2nd Dept., 2004] ). The final amended infant's compromise order, dated August 23, 1999, is signed by Justice William Gary and contains the following pertinent direction: “ORDERED that upon the infant plaintiff attaining the age of 18 years, or the statutory age of majority at that time provided, he shall appear before the Court at Special Term Part 76, for determination as to his ability to handle his affairs.”
Unless there has been an appointment of a guardian ad litem, as provided by CPLR § 1202, a person under the age of 18 may only appear by one of the other representatives enumerated in CPLR § 1201(Crumpton v. Most, 12 Misc.3d 575 [N.Y.Sup.2006] ). These would include a guardian of the property, or if there be none, a parent having legal custody, or if no such parent, by another having legal custody, or if the infant is married, by an adult co-resident spouse ( id.).
Under current New York State law an infant is a person who has not attained the age of eighteen years (CPLR § 105[j] ). Therefore, Van reached the age of majority on December 21, 2008. As a general rule an adult is presumed competent to manage his own affairs (see Buckley v. Ritchie Knop, Inc., 40 AD3d 794, 795 [2nd Dept.2007] ). However, in this instance, Justice Garry's order requires that Van Gilchrist present himself to the court to demonstrate his capacity. This raises the following question. Until such time as Van Gilchrist presents himself to the court to demonstrate his capacity, does his mother remain the guardian of his property and therefore have standing to make the instant application? Does she have to commence a proceeding pursuant to Article 81 of the Mental Hygiene Law to obtain that authority. If she must do, who has the authority to make the instant application in the interim assuming there is an emergent need?
The court believes that she does not have standing based on her son's presumed competency as an adult. However, she may commence a proceeding pursuant to Article 81 of the Mental Hygiene Law in order to obtain such authority.
Therefore, assuming that the petitioner does not have the authority, then the application must be denied for lack of standing. Assuming, for the sake of argument, that the petitioner may still act as guardian of Van's property, and has standing to make the instant application, it must be denied for the reasons set forth below.
The petition does not set forth the details required pursuant to 22 NYCRR 202.67(f). The few details that were provided make it abundantly clear that the money sought is for the repair of a vehicle in which neither the guardian nor the infant has any ownership or property interest. It appears to be an expenditure for the benefit of the infant's uncle who apparently helps the guardian and infant by transporting them. There is no showing that such an expenditure would be in the best interest of the infant. Furthermore, it make little economic sense to spend over $7,000.00 to repair a nine year old automobile. Ultimately, the infant trust funds are for the hurt and injury sustained by the infant (Caban v.. Lonkey, 53 Misc.2d 171 [N.Y.City Civ. Ct 1967] ). They are not community property for family use ( Id ).
The application to release part of the infant's settlement proceeds for the reasons set forth is denied.
The foregoing constitutes the decision and order of this court.