• Surrogate's Court, Bronx County
  • Dec 26 2012 (Date Decided)
  • Surrogate Holzman

ESTATE OF JOSEPH MARCHESE, Deceased — The administrator, the decedent's spouse, seeks to compromise causes of action arising from the decedent's death and judicially account for the recovery.

The decedent died intestate on October 26, 2003, allegedly as a result of medical malpractice. The decedent's distributees are the petitioner and an infant son. The petitioner proposes that a portion of her share and almost the infant's entire share be used to purchase annuities for each of them. The petitioner amended her account to correct certain calculation errors and agrees that most of the compensation awarded to the guardian ad litem shall be paid from her distributive share. The guardian ad litem for the infant recommends approval of the application, as amended, including distribution pursuant to the formula enunciated in Matter of Kaiser (198 Misc 582 [1950]) and the purchase of deferred benefits for his ward. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, the lack of any unsatisfied debts or claims presented herein and that the decedent never regained consciousness after the alleged malpractice, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action.

Counsel fees are allowed in the sum requested. The net distributable proceeds are to be paid to the decedent's distributees pursuant to Matter of Kaiser (198 Misc at 582) as follows: 71.2 percent to the spouse and 28.8 percent to the infant. The proposed annuities may be purchased for each distributee's benefit. The petitioner is to pay most of the compensation to be awarded to the guardian ad litem from the up-front proceeds that otherwise would be paid to her.

Settle decree.

December 26, 2012