Opinion
100431/08.
Decided June 29, 2011.
The attorneys in the matter are:
Sullivan, Papain, Block, McGrath Cannavo, P.C., Attorneys for Plaintiff, Pemberton Briggs, Attorney for Defendants Jiang and Huang.
O'Connor, O'Connor, Breese First, P.C., Attorney for Defendants Roe Romeo, Flint and Franich, Esqs., Attorney for Defendant Simeone.
White McSpedon, P.C., Attorney for Defendant Black Dog Grill and Christopher Petrunti, Purcell Ingrao, P.C., Attorney for Proposed Intervenor/Movant Joseph Calano.
The following papers numbered 1 to 5 were marked fully submitted on the 15th day of April, 2011:
......................................................................................................Papers Numbered Notice of Motion of Proposed Intervenor, Joseph Calano (Affirmation in Support) (dated January 17, 2011)......................................................................................................1 Affirmation in Support of non-parties BDGJ, INC., d/b/a Black Dog Grill and Christopher Petrunti (dated January 28, 2011)......................................................................................................2 Plaintiff's Affidavit in Opposition (Memorandum of Law) (dated March 11, 2011)........................................................................................................3 Reply Affirmation of Proposed Intervenor (dated March 21, 2011)........................................................................................................4 Reply Affirmation in Further Support (dated March 23, 2011)........................................................................................................5 Plaintiff's Affidavit in Further Opposition (dated April 5, 2011)............................................................................................................6
VOLPE v. ROMEO, et., al.
Upon the foregoing papers, the motion of proposed intervenor, Joseph Calano, for leave to (1) intervene in this personal injury action; (2) vacate this Court's Order dated August 10, 2009 confirming settlement of the within action, and (3) remove this action to the Surrogate's Court, Richmond County for further proceedings to allocate and distribute the settlement proceeds is granted to the extent of (1) allowing intervention for the sole purpose of seeking vacatur of the allocation portion of this Court's August 10, 2009 Order, (2) vacating same and (3) referring the issues of the allocation and distribution of the approved settlement to the Surrogate's Court, Richmond County pursuant to CPLR 325(e), in order to afford the intervenor a full and fair opportunity to litigate his assertion that the decedent, Wayne P. Volpe, possessed a sufficient level of consciousness prior to his death to support an award of damages for pain and suffering. In all other respects, the motion is denied.
Movant is the plaintiff in a personal injury action sounding in assault, battery and violation of the Dram Shop Act which was filed against, inter alia, Eleanor Volpe as administratrix of the Estate of Wayne Volpe, bearing Index No. 100316/2007 and pending in this County before the Honorable Joseph Maltese. The alleged assault and battery occurred on or about July 30, 2006, two months prior to the automobile accident underlying this case, in which Mr. Volpe was killed.
This matter arises out of a fatal, three-vehicle accident which occurred on September 25, 2006 on Interstate 87 in Ulster County, New York. At the time of the accident, the decedent was a front seat passenger in a vehicle being operated by defendant Antonio Simeone which, at the time in question, was proceeding north on I-87 near the Kingston exit. At this point in time, Simeone was allegedly cut-off by a pick-up truck towing a horse trailer (owned and operated by defendants Loraine M. Roe and Renee A. Romeo, respectively) which attempted to make a U-turn from the northbound shoulder of I-87, purportedly ten feet in front of the Simeone vehicle ( see March 15, 2010 EBT of Antonio Simeone [Calano's Reply Affidavit, Exhibit C] pp 25-28). After contact with the pick-up truck, Simeone's Jeep was apparently propelled into the southbound lanes of I-87, where it was struck by a vehicle owned by defendant Yue W. Huang and operated by defendant Liang W. Jiang. There is no dispute that Mr. Volpe died as a result of the massive injuries which he sustained in this accident ( see November 22, 2006 Final Autopsy Report [Plaintiff's Exhibit E]), i.e., a "complete hinge fracture of the basilar skull" ( id.). However, as shall presently appear, a dispute has arisen as to the accuracy of Simeone's claim that the decedent was asleep at the time of the initial impact and, therefore, incapable of experiencing any degree of pre-impact terror or conscious pain and suffering in the above accident ( see March 16, 2010 Affirmation of Lone Thanning, M.D. [Calano's Reply Affirmation, Exhibit B]; see also November 20, 2010 Affidavit of Marc Alan Borenstein, M.D. [Plaintiffs' Exhibit L]).
In his motion, inter alia, for leave to intervene pursuant to CPLR 1012, 1013, Calano contends that the Order of this Court, dated August 10, 2009, should be vacated pursuant to CPLR 5015, and the matter removed or transferred to the Surrogate's Court, Richmond County, for further proceedings to judicially account for the settlement proceeds. The order in question provides, in relevant part, for the settlement of plaintiffs' cause of action for wrongful death for the sum of $300,000.00 and the voluntary discontinuance, with prejudice, of decedent's personal injury action. In support of his motion, Calano maintains that this court's allocation order is invalid since, inter alia, all of the interested parties who might be adversely effected were not joined in the compromise proceeding. More particularly, Calano argues that as a potential estate creditor by virtue of his pending claim for personal injuries, this action should not have been brought before the Court for final settlement approval without providing him with notice and an opportunity to be heard. In this regard, Calano asserts that since the recovery of damages in wrongful death belong exclusively to the decedent's distributees as monetary compensation for their pecuniary loss as a result of decedent's death ( see EPTL 5-4.1, 5-4.3[a]; George v. Mt. Sinai Hosp., 47 NY2d 1070), the allocation of the settlement proceeds exclusively to plaintiffs' wrongful death action operates to deprive any creditors of the Estate of access to that portion of the recovery which might otherwise have been allocated to the decedent's conscious pain and suffering, which is an Estate asset against which they (and he) would be entitled to proceed.
The order also provides for an award of disbursements to plaintiffs' counsel in the amount of $6,722.32, attorney fees in the amount of $97,759.15, and for the balance of the settlement proceeds, i.e., $195,518.32, to be held in an interest bearing escrow account for the benefit of the Estate pending a final decree from the Surrogate's Court, where a petition by Estate to distribute the funds and allocate the settlement proceeds is presently pending.
In opposition, plaintiffs assert that Calano has no standing to intervene since his "claim" against the Estate for, e.g., assault and battery, amounts to nothing more than a series of accusations based on events wholly unrelated to the September 25, 2006 accident. Moreover, plaintiffs argue that no pain and suffering was experienced by the deceased, since the only eyewitness to the event (Simeone) maintains that Calano was sound asleep at the time of the accident and was killed instantly. Finally, plaintiffs maintain that Calano was not entitled to notification of the submission of the compromise order to this Court inasmuch as the compromise of a wrongful death action by a Justice of the Supreme Court pursuant to EPTL 5-4.6 does not require the participation of any party other than those named as plaintiffs or defendants in the action. Finally, Calano is claimed to be incapable of producing and has failed to present any factual support for the reallocation of any portion of the settlement money to the decedent's conscious pain and suffering. As a result, plaintiffs' contend that the proposed intervenor has presented no legitimate legal challenge to the way in which this Court compromised the action.
To the extent relevant, EPTL 5-4.6 paragraph (a) subparagraph (1) was amended in 1992 (L 1992 ch 595 § 14) to direct the Supreme Court, except for "good cause shown," to "transfer. .[any] action [for wrongful death] to the surrogate's court which issued the letters [of administration] for determination of the issues of allocation and distribution of [the] proceeds and related matters" after a compromise has been approved in the Supreme Court ( Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d 332, 337, see EPTL 5-4.6[d]). Although the amended statute was subsequently construed by the Court of Appeals to render the above "transfer" wholly discretionary ( id. at 338), it was nevertheless recognized that the nature of the amendment was expressive of a Legislative determination that Surrogate's Court was the preferred forum for the allocation and distribution of damages following the settlement of the action in the Supreme Court. This, the Court noted, was the apparent intent of the amendment, i.e., to remove the allocation and distribution of an approved settlement of the substantive causes of action to a single forum in which all of the interested parties including "potential creditors," could be joined ( see Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d at 337; Matter of Buscemi, 32 AD2d 1021; see also Estate of Torres , 28 Misc 3d 677, 679-680 [Surr Ct Bronx Co 2010]. Consonant with the "permissive" nature of the transfer approved in Pollicina, this Court must reject movant's contention that the order of this Court dated August 10, 2009 was in any way unauthorized or invalid, nor was movant entitled to intervene in this action as a matter of right under CPLR 1012. Nevertheless, it is the determination of this Court that the movant be permitted to intervene to the limited extent previously noted ( see CPLR 1013), and to vacate the allocation of damages contained in its August 10, 2009 Order in deference to the aforementioned Legislative preference ( see Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d at 338 n1).
EPTL 5-4.6(a) was subsequently amended by L2005, ch 719 § 1, in relevant part, to delete much of the language added to subparagraph (1) in 1992; to require the Supreme Court to act within 60 days of any application of an administrator appointed under EPTL 5-4.1 to either approve or disapprove the compromise of a wrongful death action and any related request for counsel fees and other expenses; and to provide in subparagraph (2) that the above awards "shall be immediately payable from the escrow account upon submission to the trial court [of] proof of filing of a petition for allocation and distribution in the Surrogate's Court on behalf of the. . .estate" (emphasis added). Although admittedly less forthright than the 1992 amendment, it does not appear that any substantive change in the preferred role of Surrogate's Court was intended.
In reaching this decision to vacate that portion of its August 10, 2009 Order which allocated the settlement proceeds entirely to plaintiffs' wrongful death action, this Court finds persuasive the rationale expressed in somewhat similar circumstances by Surrogate Holzman of the Bronx in Matter of Torres ( 28 Misc 3d 677, supra). As therein observed, "As a general rule, where [the] compromise [of an action] is contemplated, the defendant is concerned only about the total amount that is to be paid to settle all of the causes of action alleged in the complaint and could not care less about the allocation of the settlement proceeds between the wrongful death and personal injury causes of action. . . .[As a result,] where [, as here,] the complaint alleges [causes of action for]. . .both wrongful death and personal injury . . .[EPTL 5-4.6 should be interpreted as reflecting a legislative intent that] the supreme court. . .authorize the amount of the settlement or compromise of both causes of action [as well as the other awards required by EPTL 5-4.6], and leave all allocation issues to the surrogate's court for determination after jurisdiction is obtained over all necessary parties in an accounting proceeding" ( id. at 680 [ citations omitted]).
On this view of the case, since it is undisputed that Calano heretofore was afforded no opportunity to be heard in this case on the issue of the allocation of the settlement proceeds between plaintiffs' wrongful death and personal injury causes of action, it is believed that the interests of justice will best be served by vacating the allocation portion of this Court's August 10, 2009 Order authorizing the settlement of the wrongful death cause of action for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS, and substituting therefor a provision (1) authorizing the settlement of plaintiffs' action for, e.g., personal injury and wrongful death, for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS and (2) referring the administration of the proceeds of the approved settlement to the Surrogate's Court, Richmond County for further proceedings to determine "the issues of allocation and distribution of proceeds and related matters" ( Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d 332, 337; see CPLR 325[e]).
It is hereby
ORDERED, that the proposed intervenor, Joseph Calano shall settle an order on notice.